Oct 12, 2020
Amy Coney Barrett Senate Confirmation Hearing Day 1 Transcript
Day 1 of the Supreme Court confirmation hearing of Amy Coney Barrett took place before the Senate on October 12. Read the transcript of the full hearing with Barrett’s testimony here.
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Senator Lindsey Graham: (02:53)
Learn about the differences in judging and maybe the differences in the party. That happens, it’ll be a successful hearing. As to the hearing room, I doubt if there is any room in the country that’s been given more attention and detail to make sure it’s CDC compliant. The architect at the Capitol working with the attending physician has set up the room in a fashion that we can safely do our business. Senator Lee is back. You’ve been cleared by your physician. Welcome back. The COVID problem in America is real, is serious, is dangerous, and we have to mitigate the risk. I would just let every American know that many of you are going to work today, probably already been at work. And I hope your employer will take care of your healthcare needs, but we do have a country that needs to move forward safely. And there are millions of Americans, cops, waitresses, nurses, you name it, going to work today to do their job and we’re going to work in the Senate to do our job. And one of the most important jobs the Senate Judiciary Committee will ever do is have hearings and confirm a justice to the Supreme Court.
Senator Lindsey Graham: (04:16)
For housekeeping purposes, the first day has traditionally been opening statements by my colleagues. We’ll do 10 minute rounds and everybody will have 10 minutes to talk about their views of the hearing and what this is all about. Then, we will have a panel to introduce Judge Barrett and she will make an opening statement. We’ll try to finish mid-afternoon, if that’s possible. Then, Tuesday and Wednesday will be long days. There’ll be 30 minute rounds for every senator, followed by a 20 minute round.
Senator Lindsey Graham: (04:50)
My goal is to complete that Wednesday at some kind of reasonably, reasonable hour in the evening. Thursday, we will begin the markup. I intend to hold it over and bring the committee back on the 22nd to vote on the nomination. If I may, I’ll start off with a opening statement and say, “Why are we here?” Number one, justice, Ruth Bader Ginsburg died on September the eighth 18th.
Senator Lindsey Graham: (05:20)
What can you say about Justice Ginsburg? She was confirmed 96 to three. Now, those were days that have since passed. I regret that. 96 to three. Now, this was a person who worked for the ACLU, someone who was known in progressive circles as an icon. Apparently, just about every Republican voted for her. Her good friend on the court, Justice Scalia, I think got 97 votes. I don’t know what happened between then and now, I guess there’s, we can all take some blame, but I just want to remind everybody, there was a time in this country where someone like Ruth Bader Ginsburg was seen by almost everybody as qualified for the position of being on the Supreme Court, understanding that she would have a different philosophy than many of the Republicans who voted for her. 27 years on the court before becoming a member of the court, she was an active litigator pushing for more equal justice and better rights for women throughout the country.
Senator Lindsey Graham: (06:39)
Her close friend until his death, Justice Scalia called her, “The leading and very successful litigator on behalf of women’s rights, the Thurgood Marshall of that cause.” What high praise. I can’t say any more than that statement says. In my view, the person appearing before this committee, is in a category of excellence, something the country should be proud of, and she will have a chance to make her get her case to be a worthy successor and to become the ninth member of the Supreme Court of the United States. On September the 26th, Judge Amy Barrett was nominated by president Trump to the Supreme Court. Who is she?
Senator Lindsey Graham: (07:39)
She is a judge sitting on the Seventh Judicial Circuit. She’s highly respected. She was a professor at Notre Dame. Three years during that tenure, she was chosen by the students to being the best professor, which I’m sure is no easy task at any college. She’s widely admired for her integrity. She grew up in New Orleans, graduated from Rhodes College in Memphis, Tennessee in 1994, graduated Summa Cum Laude and first in her class from Notre Dame Law School in 1997.
Senator Lindsey Graham: (08:20)
Academically, she’s very gifted. She clerked for Judge Laurence Silberman on the US Court of Appeals for the DC Circuit. And then, for Justice Scalia on the Supreme Court. She practiced law in Washington, DC. She joined the faculty at Notre Dame in 2002. She’s published numerous articles in prestigious journals, including the Columbia, University of Virginia and Cornell Law Review. She’s been a Circuit Court Judge at the Seventh Circuit since 2017. She was confirmed to that position with a bipartisan vote. She has heard hundreds of cases in that capacity.
Senator Lindsey Graham: (09:10)
She said, “I clerked for Justice Scalia more than 20 years ago, but the lessons I learned still resonate. His judicial philosophy is mine. A judge must apply the law as written. Judges are not policymakers and they must be resolute in setting aside any policy views they might hold.” She will give her statement. But I think that is a good summary of who she is. That’s who Amy Barrett is in terms of the law. In terms, Amy Barrett, the individual, she and her husband have seven children. Two adopted. Nine seems to be a good number. The process. This is an election year. We’re a confirming the judge in an election year, after the voting has occurred. What will happen is that my Democratic colleagues will say, “This has never been done.” And they’re right in this regard, nobody’s I think has ever been confirmed in an election year past July.
Senator Lindsey Graham: (10:25)
The bottom line is, Justice Ginsburg, when asked about this several years ago, said that, “A president serves four years, not three.” There’s nothing unconstitutional about this process. This is a vacancy that’s occurred through a tragic loss of a great woman. And we’re going to fill that vacancy with another great woman. The bottom line here is that the Senate is doing its duty constitutionally.
Senator Lindsey Graham: (10:52)
As to Judge Garland, the opening that occurred with the passing of Justice Scalia was in the early part of an election year. The primary process had just started. And we can talk about history, but here’s the history as I understand it, there’s never been a situation where you had a president of one party, and the Senate of another where the nominee, the replacement, was made in an election year, it’s been over 140 years ago.
Senator Lindsey Graham: (11:20)
I think there’ve been 19 vacancies filled in an election year, 17 of the 19 were confirmed to the court when the party of the president and the Senate were the same. In terms of timing, the hearing is starting 16 days after a nomination, more than half of all Supreme Court hearings have been held within 16 days of the announcement of the nominee. Steven’s, 10, Rehnquist, 13, Powell, 13, Blackmun, 15, Burger, 13.
Senator Lindsey Graham: (11:53)
All I can say is that I feel that we’re doing this constitutionally. There, our Democratic friends object to the process. I respect them all. They’ll have a chance to have their say, but most importantly, I hope we will know more about how the law works, checks and balances, what the Supreme Court is all about, when this hearing is over. Why hold this hearing? A lot of people on our side say just ram it through. I hear that a lot. That’s why I don’t listen to the radio much anymore.
Senator Lindsey Graham: (12:34)
The bottom line is, I think it’s important. This is a lifetime appointment. I would like the world and the country to know more about Judge Barrett. I’m proud of you and we’re proud of what you’ve accomplished. I think you’re a great choice by the president. This is probably not about persuading each other, unless something really dramatic happens. All Republicans will vote, yes. And all Democrats will vote, no. And that will be the way the breakout of the vote.
Senator Lindsey Graham: (13:03)
… And that will be the way the breakout of the vote. But the hearing is a chance for Democrats to dig deep into her philosophy, appropriately ask her about the law, how she would be different… What’s on her mind. It gives Republicans a chance to do the same thing.
Senator Lindsey Graham: (13:22)
Most importantly, it gives you a chance, the American people, to find out about Judge Barrett. Judge for yourself, is this person qualified? Is she is qualified as Sotomayor and Kagan? I think so. These were two nominees presented to the committee by President Obama. They had a different legal philosophy than my own, but I never doubted one moment that they were not qualified. I thought Gorsich and Kavanaugh were qualified. The Senate, in the past, has looked at qualifications more than anything else. We’ve taken a different path at times; Bork, Thomas, Alito, Kavanaugh.
Senator Lindsey Graham: (14:14)
I hope we don’t take that path with Judge Barrett. She doesn’t deserve that. I don’t think it makes this hearing any better and the American people, I believe, would not deserve a repeat of those episodes in the Senate Judiciary Committee’s history.
Senator Lindsey Graham: (14:37)
To my democratic colleagues, I respect y’all. We’ve done some things together and we’ve had some fights in this committee. I’ve tried to give you the time you need to make your case, and you have every right in the world to make your case. I think I know how the vote’s going to come out, but I think Judge Barrett is required for the good of the nation to submit to your questions and ours. This is going to be a long, contentious week. I would just ask one thing of the committee. To the extent possible, let’s make it respectful. Let’s make it challenging. Let’s remember the world is watching. Senator Feinstein.
Senator Feinstein: (15:27)
Thanks very much, Mr. Chairman, and I do want to just address your last statement. We feel the same way, and I believe we want this to be a very good hearing, and I certainly will strive to do my best to achieve that.
Senator Feinstein: (15:43)
Good morning, Judge Barrett, and welcome to you and your family. Less than one month ago, the nation lost one of our leading voices for equality. Ruth Bader Ginsburg left very big shoes to fill. Judge Ginsburg loved the law, and she loved this country. She worked all of her life to ensure that the opening words of our Constitution, “We, the people of the United States, in order to form a more perfect union,” included all the people, not just a few elite few. She was a standard bearer for justice. Justice Ginsburg’s nomination was the first one that I participated in when I came to the Senate, and it was a real thrill to be part of that crowded and celebratory hearing for someone who had broken down barriers, and reopened doors, and staunchly believed in a woman’s right to full equality and autonomy.
Senator Feinstein: (16:47)
In filling Judge Ginsburg seat, the stakes are extraordinarily high for the American people, both in the short-term and for decades to come. Most importantly, healthcare coverage for millions of Americans is at stake with this nomination. So over the course of these hearings, my colleagues and I will focus on that subject. We will examine the consequences if, and that’s a big if, Republicans succeed in rushing this nomination through the Senate before the next president takes office. But most importantly, in just a few weeks on November 10th, the Supreme Court will hear hearings in Texas v. California, a case brought to strike down the ACA. The president has promised to appoint justices who will vote to dismantle that law. As a candidate, he criticized the Supreme Court for upholding the law and said, and I quote, “If I win the presidency, my judicial appointments will do the right thing, unlike Bush’s appointee, John Roberts on Obamacare,” end quote.
Senator Feinstein: (18:07)
When he appointed Judge Barrett to fill Justice Ginsburg’s seat, the president said that eliminating the Affordable Care Act would be quote, “A big win for the USA.” Judge Barrett, you’ve been critical of Chief Justice Roberts for his 5-4 opinion, upholding the law, stating that Robert’s quote, “Push the Affordable Care Act beyond its plausible meeting, to save the statute,” end quote. This well could mean that if Judge Barrett is confirmed, American stand to lose the benefits that the ACA provides. So I hope you will clarify that in this hearing.
Senator Feinstein: (18:51)
First, more than 130 million Americans with preexisting conditions like cancer, asthma, or even COVID-19 could be denied coverage or charged more to obtain health insurance. This includes more than 16.8 million Californians with preexisting conditions. And we are just one state, but I think you should know how we feel. Secondly, some 12 million working Americans are covered through the ACA’s Medicaid expansion. If the act is struck down, they lose their healthcare. Third, more than 2 million Americans under the age of 26 are covered by their parents’ health insurance and they could lose that coverage. Fourth, insurers could charge higher premiums for women simply because of their gender. And fifth, women could lose access to critical preventative services and maternity care, including cancer screenings and well-woman visits.
Senator Feinstein: (20:05)
Now, the bottom line is this. There have been 70 attempts to repeal the ACA, but clearly the effort to dismantle the law continues, and they are asking the Supreme Court to strike down the Affordable Care Act. This, I believe, will cause tremendous harm. Consider people like Christina Monroe Garcia of my home state. At age 60, Christina’s eyesight started to fail because of cataracts. She had always struggled to obtain insurance because of pre-existing conditions, including C-sections and epilepsy. The cost of coverage, when it was even offered to her, averaged between $2,500 and $3,000 a month, far more than she and her husband could afford.
Senator Feinstein: (21:03)
In 2010, she was able to obtain coverage through the Affordable Care Act. Within weeks, she was able to have cataract surgery. This saved her life. Christina described her reaction when she was able to get coverage through the California Health Exchange, following passage of the ACA. And let me quote, “It was like mana from heaven. I cried. After all these years of struggling to obtain coverage, I was able to get insurance through the California Exchange, no questions asked about my pre-existing conditions. The premium was worth $200 a month as compared to the $2,500 to $3,000 monthly payments I would have to pay before the ACA, if I could even get an insurer to offer me coverage.” As Christina further explained, and I quote, “People just don’t understand what it was like, the incredible fear before the Affordable Care Act, having to worry about being able to cover medical expenses and not being able to find affordable insurance,” end quote. We can’t afford to go back to those days when Americans could be denied coverage or charged exorbitant amounts.
Senator Feinstein: (22:29)
That’s what’s at stake for many of us, for America, with this nomination. And that’s why the questions we will ask and the views hopefully that you will share with us are so important. We are now just 22 days from the election, Mr. Chairman. Voting is underway in 40 States. Senate Republicans are pressing forward, full speed ahead, to consolidate a court that will carry their policies forward with, I hope, some review for the will of the American people.
Senator Feinstein: (23:07)
President Trump said last week that he had quote, “Instructed my representatives to stop negotiation over a COVID-19 relief package until after the election,” end quote, and to quote, “focus full-time on confirming Judge Barrett to the Supreme Court. When Justice Scalia died in February of 2016, Senate Republicans refuse to consider a replacement for his seat until after the election. At the time, Senator McConnell said the American people should have a voice in the selection of their next Supreme Court justice.
Senator Feinstein: (23:50)
When asked in October 2018, if Republicans intended to honor their own rule, if an opening were to come up in 2020, Chairman Graham promised quote, “If an opening comes in the last year of President Trump’s term and the primary process has started, let’s wait until after the next election.” Republicans should honor this word for their promise and let the American people be heard. Simply put, I believe we should not be moving forward on this nomination, not until the election has ended and the next president has taken office. Thank you, Mr. Chairman.
Senator Lindsey Graham: (24:34)
Thank you very much, Senator Feinstein. Senator Grassley
Senator Grassley: (24:36)
Welcome, Judge. On March 1, 2016, Justice Ginsburg delivered a eulogy for her friend, Justice Scalia. Justice Ginsburg said, quote, “We were different, yes, in interpretation of written decks, yet one in our reverence for the courts and its place in the US system of governance,” end of quote. Justice Ginsburg’s remarkable life and legacy will be honored for a generation and also Justice Scalia’s. The Senate is now tasked with carrying out perhaps its most solemn duty under the Constitution. As we go through this process, we should heed Justice Ginsburg’s words with a shared reverence for the court and its place in our constitutional system. This idea of place in our system of government is critical. Ours is a government of separated powers. The power to make, enforce, and interpret law is isn’t centralized in one person or one branch of government. That’s not a mistake.
Senator Grassley: (26:01)
[inaudible 00:26:00], that’s not a mistake. You all know what our American Revolution was all about and what the Constitution is all about because people at that time were sick and tired of one person, George the III restricting American colonies of freedom that English speaking people elsewhere exercised. As Justice Scalia reminds us, the framers recognize the separation of powers as quote, “The absolutely central guarantee of a just government, because without a secure structure of separated powers, our Bill of Rights would be worthless.” End of quote. But this constitutional system only succeeds, if each branch respects its proper role. A good judge understands it’s not the courts place to rewrite the law, as it sees fit. It’s not his or her place to let policy, personal or moral principles dictate an outcome of a case. We are fortunate. Judge Barrett’s record clearly reflects this standard.
Senator Grassley: (27:32)
She said, quote, “A judge must apply the law as written. Judges are not policy makers and they must be resolute in setting aside any policy views that they might hold.” End of quote. Judge Barrett’s service reflects an exceptional intellect paired with deep commitment to the rule of law. So we look to those who know her well. She’s received praise across the legal profession and ideological spectrum. Former colleagues at Notre Dame described the judge as quote, “Brilliant, industrious, gracious and kind, and is a person of utmost integrity with an open mind and an even temperament that is prized in a judge.” En of quote. She’s also known as quote, “A generous mentor and she’s known for her quote, her humility, graciousness and her ability born of her credibility to build consensus among different views. End of quote.
Senator Grassley: (28:53)
Her students quote, “Expressed awe with the power of judge Barrett’s intellect with our mastery and organization of complex material and with their professionalism.” End of quote. Leaders of more than 200 liberty supporting groups across the countries, Judge Barrett, quote, “Possesses a judicial temperament and philosophy necessary as a ball work for our Constitution and institutions of government. End of to quote, 24 state governors describe Judge Barrett as quote, “A woman of great moral character who is devoted to her country, community, family, and faith like many Americans.” End of quote. The Wall Street Journal editorial board says quote, “President Trump’s nomination of Amy Coney Barrett for the Supreme Court is the highlight of his presidency.” End of quote. A promise made, a promise kept.
Senator Grassley: (29:57)
Liberal Harvard law Professor Noah Feldman called judge Barrett, quote, “A principle, brilliant lawyer, a genuinely good person, highly qualified to serve on the Supreme Court.” That’s pretty high praise, I just recited from others. Moreover, Judge Barrett is a tireless mother of seven. For decades, I’ve laid efforts on the Senate to improve foster care and promote adoption. So it’s a privilege for me to welcome a justice like that to the Supreme Court. To sum up Judge Barrett’s qualifications and character are impeccable. Unfortunately, I expect the minority will try to rustle up baseless claims and scare tactics as they’ve done for decades. Anything to derail the confirmation of a Republican nominee. Lately, the left is threatening to pack the Supreme Court in retaliation for this confirmation process. Even the Democrats nominee for president and vice-president have not ruled out such blatantly partisan policy grabs. Republicans are following the Constitution and the president. It seems Democrats would rather just ignore both.
Senator Grassley: (31:29)
The left is also suggesting Judge Barrett’s confirmation would be the demise of the Affordable Care Act and the production for pre-existing conditions. That’s outrageous, as a mother of seven, Judge Barrett clearly understands the importance of healthcare. So let’s set the record straight. Then Professor Barrett criticized Chief Justice Roberts conclusion that the Affordable Care Act penalty was actually a tax. Democrats say her view is radical and a preview of how she might vote on the court. First, her comments dealt with a provisional law that’s no longer in effect. So the legal questions before the court this fall are entirely separate. Moreover, her criticism of Roberts reasoning is mainstream not only in the conservative legal community, but well beyond.
Senator Grassley: (32:27)
I’m the chairman of the finance committee and was the ranking member when Democrats unilaterally cobbled together Obamacare. I know a tax when I see one. This wasn’t a tax. It was never discussed in committee as a tax. Even the Democrats who forced it through Congress insisted it wasn’t a tax. Jeffrey Toobin wrote that Roberts’ tax argument was quote, unquote, “Not a persuasive one.” President Obama even said, quote, “I absolutely reject the notion that it was a tax.” Further, Democrats and their allies shouldn’t claim to know how any judge would rule in any particular case. Just look at history.
Senator Grassley: (33:13)
The left slammed Stephens for his consistent opposition to women’s rights. They called Anthony Kennedy sexist and a disaster for women. They said David Souter would quote, “End freedom of women in this country.” Ultimately the left praise these very justices that they attacked, their doomsday prediction failed to pan out. Democrats and their left allies have also shown that there is no low that they won’t stoop to in their crusade to tarnish a nominee. And I saw it all as chairman of this committee, when Kavanaugh came up. Some of my colleagues may once again, try to misrepresent and out right disparage Judge Barrett’s religious beliefs and affiliations.
Senator Grassley: (34:08)
In 2017, they suggested Judge Barrett was too faithful or too Catholic to be a judge. One senator asked whether she considered herself an Orthodox Catholic. Another told her the dogma lives loudly within you and that is of concern. Let me remind everyone that Article 1 clearly prohibits religious tests for serving in public office. Mr. Chairman, I got five sentences left. Judge, you’ll no doubt be asked how you’ll rule on questions and issues and whether the case was correctly decided. I expect that you’ll follow the example of Justice Ginsburg. A nominee should offer no forecasts, no hints of he or she will vote because that’s the role of a judge. That’s the place of a judge in our system of government. Non biased, fiercely independent, faithful to the rule of law and a steadfast defender of the Constitution. Judge Barrett, I look forward to our conversation. Once again, congratulations.
Speaker 1: (35:23)
Thank you, Senator Grassley. I believe Senator Leahy will now join us virtually.
Thank you, and I can hear, I assume you can hear me all right.
Speaker 1: (35:32)
Yes, sir. We see you. There you are. Thank you.
Thank you. As I listen to this, I think about the fact that I’ve served in the Senate for 46 years. During that time we had 20 Supreme Court nominations, 16 confirmation hearings. And I can tell you right now, none looked anything like this. We’re less than two weeks from Justice Ginsburg being laid to rest. Now it’s true, it’s the responsibility of this committee to consider her replacement on the Supreme Court, but this isn’t the way we should do it. We should not have had a nomination ceremony before Justice Ginsburg was even buried, while the nation was mourning her passing. We should not be holding a hearing just 16 days later when this committee is afforded. It’s three times as long to vet other modern nominees to our nation’s highest court. We shouldn’t be holding a hearing three weeks from a presidential election, when millions of Americans have already voted.
Now when doing so, it requires that literally half of the Senate goes back on their word. Think of that my Republican colleagues. Literally half of the Senate had to break their word. Contradicting every argument they made four years ago about the American people needing a voice during election year vacancies. We should not be holding this hearing, when it’s plainly unsafe to do so. Two members of this committee just now emerging from quarantine and after testing positive for COVID. And when other members have declined to get tested and the chairman has refused to implement a daily testing regime to keep members and staff and Judge Barrett and her family safe.
And I might say we shouldn’t be spending time on this when we were doing absolutely nothing to pass a much needed COVID bill. Every senator on his committee knows in their heart this break with precedent, break with where their commitments is wrong. More than 212,000 Americans have died due to COVID. Millions more are hurting. The virus is spiking again across the country, but Senate Republicans have nothing to say about that. The Senate is wearing blinders to the grim reality that is facing Americans. Instead of talking about COVID and doing something to help the American people who are engaged in this mad rush to fill Supreme Court vacancy on the eve of a presidential election. And why? I think the answer is painfully clear, with this vacancy President Trump and Senate Republicans see the potential to wildly swing the balance of the court. They see the ability to take the courts from being independent to making them instead an arm of the far right and the Republican party, if potential to accomplish through the court, but they …
… potential to accomplish to the court, but they failed to accomplish by votes in the halls of Congress. At the top of their hit list is the Affordable Care Act. It’s no secret, it’s no coincidence that Republicans are rushing to confirm Judge Barrett before the Supreme Court considers the latest Republican led lawsuit to overturn the Affordable Care Act on November 10th. The President has even promised that any judge he nominates will overturn the Affordable Care Act. A willing member of this committee has promised he won’t vote for a judge, unless he has that commitment that the nominee will overturn the act. And for her part, Judge Barrett’s writings and they unequivocally declare she considers the act unconstitutional. In fact, overturning the Affordable Care Act has been perhaps the single most important policy objective of the Republican Party during the past decade. If Republicans are now successful, the results will be nothing short of catastrophic for the millions of Americans who depend upon this coverage and [inaudible 00:01:15]. These are real people. I believe you have in the committee and I’m trying to get this so you can actually see it.
This is Mary Naden Scott. She lives in Northfield, Vermont, that’s just over the ridge from my home in Middlesex, Vermont. In her 20s, Mary was diagnosed with Frederick’s ataxia, a rare neurological disease. Like my wife, Marcelle, and I apologize for … I know you have this picture in the committee room, Mary worked as a nurse. Realizing she would soon no longer be able to pursue the career she loved, she asked the hospital to rotate her through different specialties so she could help more people as many ways as possible. That’s who she is. And now she’s in a wheelchair, she could no longer practice nursing, she does everything she can to take care of her two children.
I actually had the pleasure of calling one of her sons on his birthday last spring and Mary, I know attends their soccer games. She helps with their remote school. She even brought them to tour the Vermont State House. Now Mary can do this because her medication and in-home care is paid for by her insurance. But she’s worried, even with some state protections, she’s worried what the Supreme Court case next month will mean for people with pre-existing conditions like her. For Mary, if she lost her insurance, her biggest worry is she’d lose her in-home support that allows her to continue living at home and taking care of her children. Now she’s a fighter. And when I think of what the Affordable Care Act means for millions of Americans, what’s on the line with this nomination, I think of Mary, I think of what she’s going to lose and she’s not the only one.
You know, I talk to Vermonters all the time. Now think of another one, Martha Richards. She is an amazing, amazing woman. She’s another Vermonter who reached out to my office concerned about the fate of the Medicaid expansion under the Affordable Care Act. Martha earns just over the minimum wage in Vermont. She works for the Vermont State Parks and she’s raised two kids on her own. Just look at this person, soon after enrolling now in expanded Medicaid program, she began experiencing debilitating pain in her ear, behind her eye, and led to a series of expensive medical tests, including two MRIs that would cost $6,000 each. She shutters at the thought what would have happened without the Medicaid expansion. If it’s discarded now, as Republican attorneys general have requested a case before the Supreme Court, millions of Americans like Martha would be on their own. Now I do not suggest that Judge Barrett personally desires these consequences or personally desires to devastate the lives of these two Vermonters, far from it.
But these are nonetheless the consequences of her stated views on the law [inaudible 00:44:05] the Supreme Court. And if Republicans are successful in filling this vacancy prior to November 10, well then we know these pillars will almost certainly prevail. So that’s what’s at stake here. That’s what weighs heavily on me as we begin these hearings. Also weighs heavily on the minds of the Vermonters I represent and I’ve heard from them, often and loudly, since Justice Ginsburg’s passing. They’re scared Judge Barrett. They’re scared that your confirmation would rip the limb that [inaudible 00:44:38] healthcare protections that millions of Americans fought to maintain and which Congress has repeatedly rejected [inaudible 00:05:47]. They’re scared that the clock will be turned back to a time when women had no right to control their own bodies. And when it was acceptable to discriminate against women in the workplace. They’re scared that at a time when we are facing the perilous impacts of climate change, bedrock environmental protections are going to be eviscerated.
And they’re scared that your confirmation would result the rolling back of voting rights, workers’ rights and the rights of the LGBTQ community to equal treatment. These aren’t just thoughts, these are real life implications of decisions made by the court. And the majority of Americans, like an overwhelming majority of my fellow Vermonters don’t support taking our country in that direction. And Republicans first announced their intention to fill Justice Ginsburg’s seat just one hour after her death. From that moment this process has been nothing but shameful. Worse, it will almost certainly lead to disastrous consequences for Americans. Justice Ginsburg, I am certain would have dissented and I will too on behalf of Vermonters, on behalf of the integrity of the Senate, and on behalf to the majority of Americans who oppose this process. Thank you.
Senator Lindsey Graham: (46:25)
Thank you, Senator Leahy, Senator Cornyn.
Senator John Cornyn: (46:28)
Thank you, Mr. Chairman.
John Cornyn: (00:22)
Thank you, Mr. Chairman. Judge Barrett, welcome to you and your family.
John Cornyn: (00:27)
The Senate Judiciary Committee undertakes no more important duty than the one we undertake today, considering the nomination for a seat on the United States Supreme Court. As the chairman said, these used to be routine. Even the two justices who were once considered the ideological bookends on the court received overwhelming support in the Senate. While the two justices had a different judicial philosophy and were nominated nominated by presidents of opposing parties, the Senate used to recognize that exceptional qualifications were all that was required for a seat on the court.
John Cornyn: (01:07)
Throughout your impressive career, you’ve earned the respect to those who share your views on the law, as well as those who do not. As Justice Ginsburg said of her unlikely friendship with Justice Scalia, you can disagree without being disagreeable. But I don’t want to imply that you disagree frequently. In fact, during your time on the Seventh Circuit, you’ve sided with your colleagues more than 95% of the time. When you’ve had the rare disagreement, your opinions attacked the ideas, not the person. We could use more of that. Your collegiality has been demonstrated in the numerous letters pouring in from your colleagues, clerks, students, virtually everybody with whom you’ve come in contact. Folks with widely different judicial philosophies agree that you are brilliant, respectful, kind, and when you disagree, you do so without personal rancor or malice.
John Cornyn: (02:06)
While your qualifications and reputation are on par with those justices who have sat in the seat before you, the political climate in which you are being vetted is quite different, as we all know. What our colleagues on the other side of the aisle put Justice Kavanaugh through two years ago was an absolute disgrace, and hopefully a low point for the Senate. They in some of their allies sought to destroy the personal character of a good man with innuendo, misinformation, and outright lies. I hope they resist the temptation to repeat that during this hearing.
John Cornyn: (02:49)
I do remain concern, Judge, about some of the earlier attacks on your faith. In a recent Wall Street Journal column, a Wisconsin Supreme Court justice wrote: “To put it bluntly, America’s secular, cultural elites aren’t sure that a faithful Christian can be entrusted with the law. A former senior aid to former majority leader Harry Reid recently said the groups want blood. Democrats on and off the committee want a real fight. But let me be clear, Judge, as you know, there’s no religious test to serve on the Supreme Court. Why? Because the Constitution says so. And I can only hope that the civility that you’ve shown through your professional work will be afforded to you through these proceedings.
John Cornyn: (03:45)
But, Judge, there’s a question that comes up in my discussions with my constituents that’s really more basic and more personal. They want to know how you do it. How do you and your husband manage two full-time professional careers and at the same time take care of your large family? I’ll bet there are many young women, like my own two daughters, who Marvel at the balance that you’ve achieved between your personal and professional life.
John Cornyn: (04:21)
As is customary and important, I also look forward to revisiting the appropriate role of judges in our constitutional republic, something that you can see there appears to be some dispute about here. You and I both know that judges should not be policymakers, but could it be that one of the reasons these confirmation hearings have become so contentious is because some Americans have given up on the idea of fair and impartial judges who do not pick winners and losers, that they’ve given up on an independent judiciary? I hope not.
John Cornyn: (04:59)
Judges should not be un-elected, super-legislators giving their political allies wins they could not secure through the rough and tumble of the political process. Our founders through the Constitution provided that judges would be independent of political pressure. Chief Justice Roberts reminded all of us recently that we do not have Obama judges or Trump judges, Bush judges, or Clinton judges, and ideally that is true.
John Cornyn: (05:29)
You’ve said judges constrain themselves by making a choice to follow the law where it leads, trying to check their own preferences at every turn. In the end, a judges internal compass, her commitment to the rule of law, rather, is the most important constraint upon any sort of judicial willfulness. But you’re being asked to abandon that, Judge. You stand accused of intending to violate your oath before you even take it. Further, our Democratic colleagues want you to guarantee a result in a case as a quid pro quo for your confirmation. It’s outrageous.
John Cornyn: (06:14)
Well, they’ve said that if this confirmation proceeds, they intend to pack the court with more justices who will turn the Supreme Court into a genuine second legislative body. We’ve heard what Justice Ginsburg had to say about that, that would be a terrible mistake.
John Cornyn: (06:33)
Judge Barrett, I’m confident that at the end of this hearing your stellar character, credentials and body of work as a judge will demonstrate that you understand the limited but important role of the judiciary under our Constitution. I’m confident that you will demonstrate that you will faithfully and fairly interpret the text of the law and the Constitution and dutifully apply them to the disputes that come before you. I’m confident that at the end of this process, you will be confirmed to the United States Supreme Court. Thank you.
Lindsey Graham: (07:11)
Richard Durbin: (07:15)
Thank you, Mr. Chairman. Judge Barrett, your family, welcome.
Richard Durbin: (07:20)
We’re at a critical moment in our nation’s history, in the throes of a devastating pandemic with over 216,000 Americans dead and over 7.7 million infected with this virus. Each day, we are reminded of how this invisible virus has changed our lives and changed America, and there is no end in sight. We face an economy in crisis with millions of jobs lost, the crushing challenges facing workers, businesses, families, all across America.
Richard Durbin: (07:59)
And we’re in the middle of an election season. Millions of Americans have already cast their votes. And this may be one of the most consequential elections in our nation’s history, because for the first time in the history of the United States, an incumbent president refuses to commit to a peaceful transition of power if he loses the election. This president in his vanity and constitutional recklessness refuses to commit to accept the will of the American electorate.
Richard Durbin: (08:32)
And of course, we’re still in the process of mourning the loss of an historic champion of justice and equality, Ruth Bader Ginsburg. Justice Ginsburg spent her entire life and every ounce of strength and talent she was given in the pursuit of America’s highest ideal: Equal justice under the law. Her absence is deeply felt.
Richard Durbin: (08:53)
Now this is the context in which the Senate majority Republicans are defying the traditions of the Senate and rushing forward with President Trump’s third nomination to the US Supreme court. It has been recounted earlier that Justice Ginsburg was approved by the Senate by a 96 to 3 vote. This icon of liberal thinking, advocate for the ACLU, 96 to 3 before the United States Senate. And then Anton Scalia on the opposite polar end of the political spectrum approve 98 to nothing. Amazing. Can this be the same Senate? It’s not. The reason those votes were so overwhelming was because people live by the rules, they lived by the traditions of the Senate and they had mutual respect for one another. We know now that this process does not adhere to those guidelines. The haste in this pursuit before us today, is unfair to the Senate and unfair really to the nominee.
Richard Durbin: (10:04)
The nominee before us was announced 16 days ago, the day after justice Ginsburg lay in state in the United States Capitol. We received the nomination paperwork 13 days ago, and I’ve learned since then that some materials are missing. The speed with which Republicans are moving to fill this vacancy stands in sharp contrast to the approach taken by the same Senate Republicans the last time there was a vacancy in an election year in 2016.
Richard Durbin: (10:34)
Behind me is the McConnell Rule. On February 13th, 2016, when Justice Scalia passed away, Senator McConnell said, and I quote, “The American people should have a voice in the selection of their Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.” This rock solid statement of principle was made 269 days before the 2016 election. The Republican members of this committee fell obediently in line behind Senator McConnell’s statement of principle. They even sent a letter on February 23rd, 2016, and I quote, “This committee will not hold hearings on any Supreme Court nominee until after our next president is sworn in.” The letter noted that quote, “The election is well underway,” that was 269 days before the election, and said the decision was quote, “Born of a necessity to protect the will of the American people.”
Richard Durbin: (11:32)
Yet when Justice Ginsburg passed away on September 18th, this year, Senator McConnell said that very same night, and I quote, “President Trump’s nominee will receive a vote on the floor of the United States Senate.” He made this statement a mere 46 days before the election. People had already begun casting votes. And my Republican marched in front of the cameras, looked down at their shoes, dutifully reversed their positions and lined up obediently behind their leader again.
Richard Durbin: (12:05)
It gets down to this: Either the American people do get an election year voice regarding a vacancy on the Supreme Court or they don’t. In 2016, Senator McConnell said give them a voice. Now he says don’t give them voice. It is a shameless, self-serving, venal reversal.
Richard Durbin: (12:23)
Why are Senate Republicans so afraid to give the American people a voice about the future of the Supreme Court? First, they must out that Donald Trump will be re-elected. Second, they want a 6-3 Supreme Court to carry out a Republican agenda that’s really not very popular with the American people. There are two dates on the calendar which explain their timetable: November 3rd and November 10th.
Richard Durbin: (12:44)
We know November 3rd is Election Day. President Trump has made it clear he wants another of his appointees on the Supreme Court before the election, because he anticipates court challenges over the vote, especially over mail- in balloting which he has repeatedly attacked without any substance. President Trump has indicated he’d be perfectly happy to have a close election decided by a 6-3 Conservative majority Supreme Court rather than by the votes of the American people.
Richard Durbin: (13:15)
The other date of course is November 10th. We know that date well on this committee, that’s the date the Supreme Court will hear oral arguments in California versus Texas. This is the case in which the Trump administration is urging the court to strike down the entire Affordable Care Act, including protections for tens of millions of Americans with pre-existing conditions. It’s unimaginable that in the midst of a pandemic the Republicans want to strike down a law that 23 million Americans rely on for their personal health insurance and millions more for the protections given to the writing of future insurance policies. On September 27th, President Trump tweeted he wants to see the Affordable Care Act quote, ” Terminated in the Supreme Court.”
Richard Durbin: (14:02)
Let’s be very honest about this, this president has never suffered an unuttered thought. He gives us 25 tweets a day to tell us what’s going through that fertile mind. We know what he thinks because he tells us what he thinks, and he made it clear that he wants his Supreme Court and this nominee to join him in eliminating the Affordable Care Act. This is his litmus test. How many times have we heard it? How many times we heard his criticism of Chief Justice Roberts for failing to strike down Obamacare? When he was running for president then-candidate Trump tweeted, quote, “If I win the presidency, my judicial appointments will do the right thing, unlike Bush’s appointee, John Roberts, on Obamacare.”
Richard Durbin: (14:47)
Think what it would mean if the Republicans’ wish to strike this down, all the people who would lose their coverage, which we have heard recounted repeatedly this morning and will hear even more. Republicans in Congress have been obsessed with repealing Obamacare for years, but they don’t have the votes to do it. They couldn’t get it done in the House, they couldn’t get it done in the Senate, thanks to three brave Republicans, including John McCain, and now they’ve got to rely on the court to do their work. Judge Barrett, you’re on the record. You wrote an article in which you criticized the NFIB versus Sebelius case where Chief Justice Roberts was the deciding vote upholding the ACA. Now your nomination is moving forward at unprecedented speed. So what’s at stake? Let me show you what’s at stake here. I want you to meet Kenny Murray from Tinley Park, Illinois and his family. Last year, I had a privilege of meeting the family and my Washington office. Here’s a picture of Sue, Ken, their daughter Maddie, and their son Kenny. Sue and Kenny Murray told me that their son Kenny was diagnosed in utero with multiple complex congenital heart defects. Before his first birthday, Kenny had two open heart surgeries at Advocate Children’s Hospital outside of Chicago. He had surgery for the third time at 14-months of age. Four months in his young life, he was staying in the pediatric ICU and his health bills had reached a million dollars. When Kenny was born in November, 2013, his dad’s health insurance through his employer had a lifetime maximum cap of a million bucks. Thankfully, the Affordable Care Act banned insurance companies from imposing these annual lifetime limits, including on employer-sponsored health insurance. That ban went into place in January, 2014, six days before Kenny’s first surgery. If it weren’t for the ACA Sue and Ken would have hit the lifetime limit for Kenny in just four months. They told me they would have gone bankrupt. Thanks to the Affordable Care Act, Kenny was able to get the care he needed.
Richard Durbin: (16:57)
This last picture I want to show you, well, here it is. Wouldn’t you want him on your team? I sure would. When she gave permission for me to share Kenny’s story today his mom Sue said, quote, “Kenny is a real person whose life depends on the Affordable Care Act.”
Richard Durbin: (17:15)
Judge Barrett, your nomination for a lifetime appointment to the highest court in the land comes before us under a cloud. You have been nominated by a president who shows contempt for the Constitution, but does not hesitate to tell his loyal followers that you are being sent to the bench to do his political chores, abolish the ACA, rule in his favor on any election contest and even more. You cannot feel good about a president cheapening this historic moment. The future of the Affordable Care Act and so many other issues hang in the balance: Voting rights, civil rights, the right to privacy and choice, environmental protection, gun safety laws, marriage equality, Dreamers, work protection. These are the stakes. If we wait just a few more days, we’ll know what the American people have to say.
Lindsey Graham: (18:05)
Thank you, Senator Durbin. Senator Lee, welcome back.
Mike Lee: (18:10)
Thank you, Mr. Chairman. Welcome, Judge Barrett, and welcome to your family as well.
Mike Lee: (18:15)
Judge Barrett, you and I have a number of things in common. We were both raised in large families. In fact, we’re both one of seven children. In your case, as I recall, you’re the oldest of seven children, which means that long before you had your own seven children, you were also the de facto mother to many others. The way things often work in large families is such that the oldest child very often takes on responsibilities at an early age. Those responsibilities have undoubtedly helped you throughout life establishing leadership roles in your career as a lawyer, as a professor, and now as a judge. Those leadership roles of course mean something different in the Judicial Branch of government than they do in the Executive Branch or in the Legislative Branch of government.
Mike Lee: (19:05)
We’ve heard this morning a number of arguments that are essentially policy arguments, many of them geared toward actual policies. In some cases, actual pieces of legislation. We have to remember that we’ve got three distinct branches of government within our system. We’ve got two that are political, the Legislative Branch, where we work, where we make laws; the Executive Branch, headed by the president where the laws are executed, implemented and enforced; and of course the Judicial Branch where you work and where the laws are interpreted, where people come to disagreement as to their meaning.
Mike Lee: (19:44)
The branches are sometimes referred to as equal. I don’t think this is the best description of them. I think the best description of them is that they’re coordinate branches of government, in that they each exist within their own sphere. They’re not equal in the sense that the least dangerous branch was, is always, has been and always will be the Judicial Branch for the simple reason, you can’t reach out, you can’t decide where we’re going to go today or tomorrow.
Mike Lee: (20:12)
The judiciary is confined solely to those cases and controversies brought before your jurisdiction. You look not into the future, but in the past. You see the world, as it were, through a rear view mirror. Your job is to decide what the law says when people disagree as to the laws’ meaning. Those laws consist of words, those words used in a particular combination, in a particular context, had a particular meeting on the day of their enactment or their incorporation into the Constitution, and that’s your job.
Mike Lee: (20:46)
Yet, if you were watching today’s hearing and some of the statements made by some my colleagues, in fact, if you were to look at any of the countless posters put up in here, you’d think that this was a political discussion, a policy discussion, a legislative discussion. You in fact are not being reviewed for a legislative position or a policy-making position. You’re being reviewed for a position on our nation’s highest court, where you’ll be asked from time to time to decide cases based on the law and based on the facts. This is not something that should result or properly should be considered by us as something that requires us to examine whether, to what extent, in what way you have compassion for any of the individuals depicted in these photos.
Mike Lee: (21:39)
I’m certain just based on my limited interaction with you, that you have compassion for all people, but this isn’t the question, nor is the question before us, whether you would agree or disagree as to any particular policy embedded within any particular statute. You understand that this isn’t your job, not as a judge on the US Court of Appeals for the Seventh Circuit, where you now set, nor would it be if you were to be confirmed as an Associate Justice to the United States Supreme Court.
Mike Lee: (22:10)
One might also have the impression from watching this morning’s proceeding so far that the Supreme Court of the United States is a remarkably bitter, cynical, and overwhelmingly partisan place. It is not. You and I have both clerked at the US Supreme Court and we both know that you actually look at the numbers, you’ll see something remarkable. Despite its flaws, and despite the fact that it sometimes makes mistakes, the Supreme Court of the United States sits a top something that is the envy of the entire world, a judicial system that, despite the fact that it’s run by human beings and therefore is imperfect, is the best judicial system that has ever existed on Planet Earth.
Mike Lee: (23:02)
One of the many ways in which this is manifested is when you look at the nine members of the Supreme Court and the fact that they come from different backgrounds, they’ve been appointed by different presidents, they’ve come at it with somewhat different judicial philosophies, to the extent that some of them have indicated what their political leanings might be, they indicate that they come from different political backgrounds as well, and yet the most common configuration of a Supreme Court decision is not five to four. It’s not even six to three. It’s in fact, nine to zero, eight to one, and seven to two, make up the vast, overwhelming majority of all Supreme Court decisions.
Mike Lee: (23:47)
Now, this is especially remarkable when you consider the fact that the Supreme Court typically takes up only those cases, those rare cases, as to which lower courts have been unable to reach an agreement when interpreting the same finite provisions of federal law, a federal statute, or a provision of the United States Constitution. Multiple lower courts, very smart men and women from around the country, highly specialized, skilled in their trade have been unable to reach the same conclusion as to the meaning of the same group of words. Then, and only then, does the Supreme Court tend to take up those cases. Yet, the Supreme Court overwhelmingly decides those cases either unanimously or near unanimously, and without these partisan divisions, that one from watching this hearing would think is the bread and butter of the Supreme Court’s work.
Mike Lee: (24:42)
The five to four configuration is actually relatively rare. When it does arise, it’s not even always involving a hot-button political issue. Most of the Supreme Court’s docket doesn’t even consist of the hot-button issues. A whole lot of it consists of stuff that I find really, really fascinating, like the Dormant Commerce Clause. I mean, what American doesn’t sit up late at night and stew over whether it’s okay for a state or a political subdivision thereof to treat an article of commerce differently based on its origin or destination out of state or outside the United States? This of course is the kind of case that comes before the Supreme Court and might from time to time be decided on a five to four basis, but not necessarily along the lines that one would predict based on the appointment of each justice and the political party of each justice’s appointing president.
Mike Lee: (25:38)
There are, of course, some decisions that are politically charged, and that Americans do worry about more than others, that might affect more Americans. Let’s say then a decision about waste disposal in the context of the Dormant Commerce Clause. I understand that. I get that, but there too, we can’t overstate-
Mike Lee: (26:03)
I get that, but there too, we can’t overstate or overplay the role the Supreme Court of the United States might exert in that context. Even in those circumstances, when the Supreme Court rules that something has been done in a way that’s not constitutional, it doesn’t mean that that’s the end of the policy road there. Sometimes it might mean that the wrong government acted. Sometimes it might mean that the federal government acted where a state should have, or the other way around. Other times it might mean that the wrong branch of government acted. Other times it might mean that they went about it the wrong way. There’s nearly always another way around a particular policy concern.
Mike Lee: (26:51)
Whether we are talking about healthcare, whether we’re talking about privacy and individual liberty, each and every person serving anywhere in our government has an obligation to look out for the best interests of those they represent. In fact, each and every person serving as an officer of the United States government is required under Article 6 of the Constitution to take an oath to uphold and protect and defend the Constitution of the United States.
Mike Lee: (27:19)
The Constitution, in short, this document written nearly two and a half centuries ago, that has helped foster the development of the greatest civilization the world has ever known, is not just a judicial thing. This is a thing that works and works best when every one of us reads it, understands it and takes and honors an oath to uphold it and protect it and defend it. When we do our jobs in this branch, when our friends in the executive branch do their jobs, it requires us to follow the Constitution just the same way.
Mike Lee: (27:59)
These tactics of creating fear and uncertainty and doubt, these tactics that result in relentless protests outside of the one branch of government that isn’t political, astound me, but they dismay me and they disappoint me. They reflect the fact that we have allowed for the politicization of the one branch of the federal government that is not political.
Mike Lee: (28:33)
We can turn that around. We ourselves, within the legislative branch, have got to do a better job by focusing on the fact that the Constitution is not just a judicial thing. It’s also a legislative thing. It’s also an executive thing. It’s an American thing. It’s one of the many reasons why I will object any time anyone tries to attribute to you a policy position and hold you to that. You’re not a policymaker. You’re a judge. That’s what we’re here to discuss. Thank you very much, Mr. Chairman.
Mr. Chairman: (29:11)
Well, definitely some good news. Senator Lee’s enthusiasm for the dormant commerce clause convinces me you’ve made a full recovery. Senator Whitehouse.
Senator Sheldon Whitehouse: (29:23)
Chairman, Judge Barrett. America’s worried about one thing above all else right now, and it’s our health. This hearing itself is a microcosm of Trump’s dangerous ineptitude in dealing with the COVID pandemic. Trump can’t even keep the White House safe. Here, it’s the Chairman’s job to see to the committee’s safety. And though his words were reassuring, I don’t know who has been tested, who should be tested, who was a danger, what contact tracing has been done on infected and exposed senators and staff. Nothing. The whole thing, just like Trump, is an irresponsible botch.
Senator Sheldon Whitehouse: (30:25)
The irony is that this slapdash hearing targets the Affordable Care Act. This Supreme Court nominee has signaled in the judicial equivalent of all caps that she believes the Affordable Care Act must go and that the precedent protecting the ACA doesn’t matter. The big secretive influences behind this unseemly rush see this nominee as a judicial torpedo they are firing at the ACA.
Senator Sheldon Whitehouse: (31:03)
So I hope Republicans consider what’s at stake for the many people who depend right now in this pandemic on ACA health coverage. Rhode Islanders are calling, writing, emailing, tweeting me by the thousands asking me to say no to this nominee, mostly because they too see her as a judicial torpedo aimed at their essential protections. And my constituents want you, my colleagues, members of the Republican party, to stand up for once to Mitch McConnell and to the big donors who are driving this process, and for the sake of regular people say stop.
Senator Sheldon Whitehouse: (31:46)
Here’s one person to consider, Laura, from North Smithfield, Rhode Island. Laura’s brother saved her life when he donated one of his kidneys to her. The hereditary nephritis Laura battled was a pre-existing condition protected under the ACA, just like COVID is now a preexisting condition for nearly 8 million Americans. Laura tells me without the ACA and its protections for people with pre-existing conditions, “Insurance premiums, if I’m able to get insurance at all, will be financially out of reach for me and I will no longer be able to afford the health monitoring, labs, specialists appointments and treatment that are essential for my kidney to function. My immuno suppressive medications alone would cost about $48,000 annually. Before the ACA patients like me experienced times when they would come up against a life-threatening wall, not in treatment, but in the annual or lifetime caps on coverage insurers were allowed to impose. I can’t imagine what this would have meant for me, bankruptcy or worse.”
Senator Sheldon Whitehouse: (33:01)
Laura’s not alone. We’re in the midst of a relentless deadly health crisis that Trump has botched, which touches nearly everyone in this country, Americans are dying by the hundreds of thousands. Our economy is down 10 million jobs. Despite all the warnings and all the desperate pleas for help, people on the frontline, healthcare workers, teachers, first responders, police officers, countless others still struggle for the resources they need. More and more small businesses are closing for good. Many hospitals teeter at the edge of insolvency, Rhode Island, like so many other states, faces cruel fiscal challenges brought on by this pandemic.
Senator Sheldon Whitehouse: (33:44)
Since May, the House has passed two major COVID relief bills to tackle unemployment insurance, aid to the front lines, help to small business, support for hospitals, support for states and localities, and plenty more. Mitch McConnell’s Senate Republicans won’t budge. ” No urgency,” he said, but 80 minutes after we learned of Justice Ginsburg’s death, Mitch McConnell signaled he would fill this vacancy. The White House chose a replacement three days later. Justice Ginsburg hadn’t been buried when the President and Senate Republicans celebrated Judge Barrett’s nomination at the White House super spreader event.
Senator Sheldon Whitehouse: (34:28)
This was a hypocritical tire squealing 180 for many Republican colleagues. When they blocked Merrick Garland, we heard nonstop about the importance before an election of the American people weighing in at the ballot box, nonstop that you shouldn’t have a nominee appointed to the court after the primary season had begun. Well now, with Americans voting right now in the general election, we get this mad slap dash rush. Why?
Senator Sheldon Whitehouse: (34:59)
Look at the Supreme Court calendar. Exactly one week after the election on November 10th, the Supreme Court is going to hear California v. Texas, a constitutional challenge to the ACA. It survived its last challenge by one vote. If the new challenge succeeds with a new justice, the case will tear out the ACA. The law on which over 20 million Americans rely for health insurance, through which 17 million Americans access Medicaid coverage, under which 129 million Americans get preexisting conditions covered, under which millions of seniors enjoy lower drug costs, gone.
Senator Sheldon Whitehouse: (35:34)
And make no mistake, this nominee signals on the ACA and on respect for the ACA precedent are clear, clear enough to move her to the top of the big donors list. Just three years ago, she wrote that Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute. In 2013, she wrote that stare decisis is not a hard and fast rule in the court’s constitutional cases, the ACA being a constitutional case, clear signals that are likely to why she’s before this committee now.
Senator Sheldon Whitehouse: (36:07)
So back to Laura. With stories like Laura’s coming in from around the country, why would we rush forward? Well, the answer isn’t pretty. There’s a promise to big donors that must be kept. When David Koch ran for vice president, he campaigned on getting rid of Medicare and Medicaid. Imagine his fury when Obamacare passed? His groups are spending millions right now on this nomination. Republicans in Congress tried and failed to repeal the ACA more than 70 times. It’s in the Republican party platform for justices to reverse the ACA decision. Trump has over and over said this is his reason. And now, we’re in this mad rush to meet the November 10th argument deadline, and colleagues pretend this isn’t about the ACA. Right. The travel of the ACA case leads to one senator’s doorstep. In a Politico article yesterday, the senior senator from Texas tried to say that this rush process isn’t targeting the ACA. But look at the record. The district judge in Texas who struck down the ACA in the case now headed for the court is a former aide to this senator, who’s become what the Texas Tribune calls the favorite for Texas Republicans seeking big judicial wins like torpedo in the ACA. The senior senator from Texas introduced in committee the circuit court judge who wrote the decision on appeal striking down the ACA.
Senator Sheldon Whitehouse: (37:39)
Senator Cornyn has filed brief after brief arguing for striking down the ACA. He led the failed Senate charge to repeal the ACA in 2017. He said, “I’ve introduced and co-sponsored 27 bills to repeal or defund Obamacare and voted to do so at every opportunity.” And now, talking about socialized medicine, the old Republican battle cry against Medicare, Senator Cornyn and all of our colleagues on this committee are pushing to get this nominee on by November 10th, the time needed to strike down the Affordable Care Act. Please don’t tell us this isn’t about the Affordable Care Act. From Cornyn judge to Cornyn judge to this nominee, hop hop hop. When Texans lose their ACA healthcare protections, hop, hop, hop to see who’s doorstep that sits on.
Senator Sheldon Whitehouse: (38:34)
Lost in this hypocritical rush is the legacy of Ruth Bader Ginsburg. Let me close by remembering her for a minute in this unseemly charade. She fought for equality, equity and dignity. She forged a path for women in the law, to Harvard Law school, to the pinnacle of legal academia, to the apex of legal advocacy and onto the Supreme Court where she defended women’s reproductive rights, Gonzales v. Carhart, the rights of workers, Ledbetter v. Goodyear Tire & Rubber, voting rights, Shelby County v. Holder, the rights of immigrants, Homeland Security v. Regions, and countless other freedoms in her work. She bent the arc of the moral universe toward justice for all Americans. How fitting that she should be the first woman to lie in state in our United States’ capital.
Senator Sheldon Whitehouse: (39:25)
As to this charade, big donors may love it, but Americans see what’s going on. They see this ugly hasty hypocritical power grab and they know what it means for their healthcare in the midst of a pandemic. For Republicans, there is no washing your hands of responsibility for the results that your President has told us will ensue. Thank you, Mr. Chairman.
Mr. Chairman: (39:54)
Thank you. Senator Cruz I think is with us virtually, is that correct?
Senator Ted Cruz: (40:00)
Yes. Mr. Chairman.
Mr. Chairman: (40:02)
Senator Ted Cruz: (40:04)
Thank you, Mr. Chairman. Good morning. Welcome. Welcome to Judge Barrett. Welcome to your family. Welcome to your beautiful children who are here with you today. You know, I want to start by making some observations about what we’ve heard this point.
Senator Ted Cruz: (40:21)
At the very beginning, let me observe as Sherlock Holmes famously observed, that what speaks the loudest is the dog that didn’t bark, which is to date, of every Democrat who’s spoken, we’ve heard virtually not a single word about Judge Barrett. We’ve heard a lot of attacks at President Trump. We understand our Democratic colleagues are not supporters of the President. We’ve heard a of political rhetoric. We just heard the Senator for Rhode Island directing some attacks at Senator Cornyn from Texas. And I understand there’s an election in a few weeks, so those political attacks are not surprising, but we’ve heard very little about the nominee who is here and whose confirmation were considering.
Senator Ted Cruz: (41:10)
And I think part of the reason for that is that on any measure, Judge Barrett’s credentials are impeccable. This is a woman who graduated number one in her class at Notre Dame Law School. I’d venture to say that there is likely not a single member of this committee who graduated number one in their class in law school. Perhaps my colleague Mike Lee can disagree with that statement, but it is a very impressive accomplishment.
Senator Ted Cruz: (41:42)
Judge Barrett went on to be a clerk to the great Justice Antonin Scalia, one of the greatest justices ever to serve on the Supreme Court. We heard celebration from Senator Laehy about the fact that he was confirmed 98 to nothing. From there, she became a law professor for two decades at Notre Dame Law School, teaching the law to her students where she was beloved, where she was respected, where she was a serious careful scholar. And now she is one of the most respected federal Court of Appeals judges in the country.
Senator Ted Cruz: (42:22)
None of the discussions from our Democratic colleagues addressed any of that because those credentials are on their face impeccable. Indeed, the American Bar Association, which typically leans hard left and has a long pattern of favoring Democratic nominees over nominees appointed by Republican presidents, had no choice but conclude that she was well-qualified as a majority of the reviewing board did. Judge Barrett’s qualifications are remarkable and I believe she will serve as an excellent Supreme Court Justice.
Senator Ted Cruz: (43:04)
So what is our Democratic friends have focused on? Well, one thing they focused on is history and they claim the fact that this nomination is occurring at all is illegitimate. It doesn’t matter who Judge Barrett is. It doesn’t matter what she’s done. It doesn’t matter her record. It doesn’t matter for extraordinary family story of doing all of this while being a mom to seven kids. The timing of the nomination, our Democratic friends tell us, makes it legitimate, well, except for that history does not accurately reflect what the Senate has done over two centuries.
Senator Ted Cruz: (43:43)
This question of what happens when there’s a Supreme Court vacancy during a president election year, 2020 is not the first time American has faced that question. Indeed, in our country’s history, that question has come up a total of 29 times. So 29 times, presidents have faced the same circumstance, and presidents have nominated individuals to fill those positions all 29 times. 100% of it. It doesn’t matter if you’re a Democrat or Republican, from a president’s perspective, it’s easy. If there’s a vacancy, even during a presidential election year, you make a nomination.
Senator Ted Cruz: (44:22)
44 individuals have served as president throughout the history of our country. Half of them, 22 of the presidents we have had have made Supreme Court nominations for vacancies that occurred during a presidential election year. But what has the Senate done? Well, again, the Senate precedent is quite clear, and this is something that our Democratic friends do not want to address, do not want to confront. Of those 29 times 19, of them occurred when the president and the Senate were of the same party. And when the president and the Senate are the same party, history shows that those nominees get confirmed. 17 of those 19 were confirmed for vacancies that occurred during a presidential election year.
Senator Ted Cruz: (45:08)
On the other hand, for those doing math at home, the remaining 10 occurred when the Senate and the president were of different parties. When the president and Senate are of different parties, the Senate over history has confirmed only two of those 10 nominees.
Senator Ted Cruz: (45:27)
Again, history is clear. The overwhelming majority of instances that the president and Senate are of different parties, that nominee doesn’t get confirmed. That is of course what happened with Judge Garland, nominated by president Obama. President Obama was a Democrat, the Senate was in Republican hands, and following a tradition of 200 years, the Senate did not confirm that nominee.
Senator Ted Cruz: (45:52)
Now, some might think the difference between whether the Senate and the president are of the same party or a different party, that that’s just a question of partisan alignment, of partisan power, but that actually misunderstands the constitutional structure. The framers of the Constitution deliberately set up a system of checks and balances so that nobody can become a Supreme Court nominee without both the president and the Senate. Each was designed to check the other. That system of checks and balances limits power ultimately and protects the voters. And indeed, the voters made a clear choice.
Senator Ted Cruz: (46:36)
You know, one of the things that is clear from this discussion this morning is Democrats and Republicans have fundamentally different visions of the court, of what the Supreme Court is supposed to do. What its function is. Democratic senators view the court as a super legislature, as a policymaking body, as a body that will decree outcomes to the American people. Now, that vision of the court is something found nowhere in the Constitution, and it’s a curious way to want to run a country. Even if on any particular policy issue you might happen to agree with wherever a majority of the court is on any given day, who in their right mind would want the United States of America ruled by five unelected lawyers wearing black robes? It’s hard to think of a less democratic notion than unelected philosopher kings with life tenure decreeing rules for 330 million Americans.
Senator Ted Cruz: (47:48)
That is not in fact the court’s job. The court’s job is to decide cases according to the law and to leave policy making to the elected legislators. Now, look, that doesn’t mean policymaking is unimportant. In fact, it means to the contrary, policymaking is very important and the people need to have a direct check on policymaking. You know what, if a rogue court implements policies you don’t like, you, the American people, have very limited ability to check them. If a rogue Congress implements policies you don’t like, you have a direct ability to check us by throwing the bums out and voting them out and voting in new representatives.
Senator Ted Cruz: (48:29)
You know, much of the argument this morning has concerned Obamacare, and they’ve been policy arguments. They’re policy argument is they’re actually incurring in the Senate, which is the right place for them to occur, a legislative body, but our Democratic colleagues simply want a promise from a judicial nominee that this nominee will work to implement their policy vision of healthcare. That is not a judge’s job. That is not the responsibility of a judge. And in fact, making that promise would be violating the judicial oaths.
Senator Ted Cruz: (49:02)
I don’t know what will happen in this particular litigation on healthcare, but I do know that this body should be the one resolving the competing policy questions at issue. Many of our colleagues talked about preexisting conditions and I think they had made a political decision they want this to be the central issue of the confirmation. Well remember this, every single member of the Senate agrees that preexisting conditions can and should be protected. Period. The end. There is complete unanimity on this.
Senator Ted Cruz: (49:36)
Now, it’s so happens that there are a number of us on the Republican side that also want to see premiums go down. Obamacare has caused premiums to skyrocket. The average family’s premiums have risen over $5,000 a year. Millions of Americans can’t afford healthcare because of the policy failures of Obamacare. Those questions should be resolved in this body, in the elected legislature. It’s not a justice’s job to do that. It’s not the court’s job to do that. It is the elected legislature’s job to do.
Senator Ted Cruz: (50:08)
Judge Barrett brings impeccable credentials, a judicial temperament, and a faithfulness to the law. That’s what we should be looking for in Supreme Court justices. And if Democratic senators want to engage in policy arguments, they can do so here, not by filibustering every bill as they have done over and over and over again, whether it’s pandemic relief or Obamacare relief to lower premiums and expand choices. To date, our Democratic colleagues filibuster everything and then complain nothing gets passed. This is the body that has to resolve those questions. This is also the body that consistent with two centuries of precedent can, should, and I believe will confirm Judge Barrett as Justice Barrett. Thank you.
Mr. Chairman: (50:59)
Senator Amy Klobuchar: (51:04)
Welcome, Judge Barrett. This committee is gathered today for what I consider one of its most solemn duties and one that I take very seriously. Federal judges, senators, the president of the United States, we all take an oath to uphold the Constitution. We make promises to do justice, to tell the truth. At its core, that’s what judges do, right? Figure out the truth. Figure out justice.
Senator Amy Klobuchar: (51:29)
My mom, a second grade teacher, spent her life teaching little kids what was right or wrong, what was true or false. I still believe it matters, and so to the American people. But we are dealing with a President who doesn’t think truth matters. And he has allies in Congress who in the past defended our democracy, but are now doing his bidding, senators who clearly set out that the President, a precedent that the president in an election year should wait, that we-
Senator Amy Klobuchar: (52:03)
… Should wait. That we should have an election, and that then people choose the President, and the President chooses the right nominee. That was your precedent. It has been you said that the wheels of justice turn slowly, and justice, on the other hand can move at lightning speed as we are seeing here today. We cannot, and you watching at home should not, separate this hearing from the moment we are in and from the judge he is trying to rush through. To respond to Senator Cruz, this isn’t a rush to justice. This is a rush to put in a justice, a justice whose views are known, and who will have a profound impact on your life. And yes, these policies that the Court decides… They matter. Where you can go to school, who you can marry, decisions you can make about your own body, and yes, your health care. The President knows this. We have a President who has refused to commit to a peaceful transfer of power after an election. Every candidate does that, but not this guy. We have a President who has fired or replaced five Inspector Generals, Senator Grassley, who has fired an attorney general, an FBI director, and is now going after their replacements. We have a President who divides our country each and every day. He has called our military suckers and losers. He’s refused to condemn white supremacists, and he has the gall to hold up a Bible as a prop in front of a church instead of heading its words, to act justly. And now he says this election will end up in Court. Why, Senator Cruz, does President Trump matter? He is putting the Supreme Court in place, in his words, to “look at the ballots.” Well, I won’t concede that this election is headed to the Court because you know at home exactly what the President is up to. That’s why you’re voting. That’s why you are voting in droves. Why are you voting? Well, you know that you’re right. Your healthcare is on the line. You know that they are trying to push through a justice who has been critical of upholding the Affordable Care Act, and they’re doing it in the middle of a pandemic. And you can see here in this room the misplaced priorities of this Republican-run Senate, and it’s in your hands to change it. Are they working to pass a bill to help Americans to get the testing they need to save their lives? Are they working to help the moms trying to balance a toddler on their lap while balancing a laptop on their desk? Are they trying to help our seniors, isolated, missing graduations and birthdays? Are they passing the bill The House passed that would help our economy?
Senator Amy Klobuchar: (54:56)
That’s not the priority. Instead, they choose to do this. So, no. We cannot divorce this nominee and her views from the election we are in. We didn’t choose to do this now, to plop a Supreme Court nomination hearing in the middle of an election. They did. So the reason people aren’t going to fall for this is because it is so personal. The over 210,000 people who have died, the school canceled, the small business closed, the job you don’t have, the degree you couldn’t get. It’s personable to me because my husband got COVID early on. He ended up in the hospital for a week on oxygen with severe pneumonia. And months after he got it, I find out the President knew it was airborne, but he didn’t tell us. We were cleaning off every surface in our house, and my husband got it anyway. We didn’t know.
Senator Amy Klobuchar: (55:51)
And my dad at 92… He got it in his assisted living. I stood there outside his window in a mask, and he looked so small and confused. He knew who our family was, but he didn’t know what was going on. I thought it was going to be the last time that I saw him. He miraculously survived, but Marny Xiong? She didn’t. Marny was a rising star, the chairwoman of the St. Paul School Board, and just 31 years when COVID took her life. Her dad felt sick. She went with him to the hospital because he was scared, and then she got sick, never got off the ventilator, and died. The daughter of Mong refugees whose parents fled Laos to a refugee camp in Thailand before arriving in Minnesota, Marny and her seven siblings grew up in St. Paul. Their family? The American dream.
Senator Amy Klobuchar: (56:42)
This is who this virus has taken from us. Someone who has left behind a mother and a father and seven siblings who loved her, and someone who undoubtedly would have made the world a better place. The President could have saved so many lives. Instead, he’s been reckless. Packing people in without masks for your nomination party, Judge Barrett. 35 people got sick. The President himself ends up in the hospital, and when he leaves Walter Reed, still contagious, he defiantly takes off his mask and walks into the White House. And then he lies, and says the virus will magically go away. The truth matters. And the truth is, America, that this judicial nominee has made her view so clear. And this President is trying to put her in a position of power to make decisions about your lives. The Affordable Care Act protects you from getting kicked off of your insurance. That’s on the line.
Senator Amy Klobuchar: (57:36)
The President has been trying to get rid of Obamacare since he got in power. John McCain went in and stopped it with that big thumbs down. Then they went and brought a case to the US Supreme Court, and they’re now trying to stack the deck against you right now. The last time this was before the Court in a big way was when Justice Roberts, not exactly a blazing liberal, voted the same as Justice Ginsburg to uphold the Affordable Care Act. And this nominee… She criticized him. America, this is about you. It’s about these two girls up here, Evelyn and Mariah, identical twins from Cambridge, Minnesota. Honor roll students. Star athletes. They play in the softball team. One’s a pitcher, one’s a catcher. They also play basketball. One of them got severe diabetes when she was very young. Does it matter which one? The pitcher, the catcher… They both deserve good healthcare. They get that with one stroke of a pen.
Senator Amy Klobuchar: (58:36)
One judge can decide if millions of Americans, including their family, would lose their insurance. One judge can decide of millions of Americans can lose their right to keep their kids on their insurance until they’re 26 years old. One judge can decide that if seniors’ prescription drugs, which already are too high, could soar even higher. This is a judgeship that was held by an icon who voted to protect your healthcare, Ruth Bader Ginsburg, a woman who never took no for an answer. When they told her a girl shouldn’t go to law school, she graduated first in her class. And when they told her a man should argue landmark equal protection cases because maybe they’d have a better chance of winning, she did it herself, and she won. She never gave up. She had her own hashtag well into our eighties, the notorious RBG. And her last fervent wish was that a new President, the winner of this election, would pick her a replacement.
Senator Amy Klobuchar: (59:36)
When you look at her opinions, you realize she wasn’t just writing for today. She was writing for tomorrow. To the women of America, we have come so far. And in the name of RBG, we should not go backwards. As the Rabbi said at Justice Ginsburg’s Memorial in the Capitol, her dissent, her strong words when she would disagree with the Republican-appointed justices… Her words were never cries of defeat. They were blueprints for the future. So to all Americans, this hearing, whatever these guys try to do, whatever you hear from me, it will not be a cry of defeat. It will instead be our blueprint for the future. Yes, Judge. I think this hearing is a sham. I think it shows real messed up priorities from the Republican party. But I am here to do my job, to tell the truth.
Senator Amy Klobuchar: (01:00:35)
To all Americans, we don’t have some clever procedural way to stop this sham, to stop them from rushing through a nominee. But we have a secret weapon that they don’t have. We have Americans who are watching, who work hard every day, believe in our country and the rule of law, whether they are Democrats, Republicans, or Independent. They know what this President and the Republican party are doing right now is very wrong. In fact, 74% of Americans think we should be working on a COVID relief package right now instead of this.
Senator Amy Klobuchar: (01:01:10)
Let me tell you a political secret. I doubt that we’ll be a brilliant cross-examination that’s going to change this judge’s trajectory this week. No. It is you. It is you calling Republican senators and telling them enough is enough, telling them that it is personal, telling them they have their priorities wrong. So do it. And it is you voting even when they try to do everything to stop you. It is you making your own blueprint for the future instead of crying defeat. So do it. This isn’t Donald Trump’s country. It is yours. This shouldn’t be Donald Trump’s judge. It should be yours. Thank you, Mr. Chairman.
Speaker 1: (01:02:00)
Senator Ben Sasse: (01:02:02)
Thank you Mr. Chairman. Judge Barrett, welcome. Congratulations. Jesse Barrett, congratulations. I just want to say Senator Klobuchar said a number of things about COVID that I agree with. She cited a bunch of really painful stories in Minnesota, and similar stories could be told from across the country. I even agree with parts of her criticism of the mismanagement of COVID by Washington DC. I don’t know what any of that has to do with what we’re here to do today. Huge parts of what we’re doing in this hearing would be really confusing to eighth graders if civics classes across the country tuned into this hearing and tried to figure out what we’re here to do, and they heard as much as they’ve heard about 2009 finance committee debates about what should be in a healthcare reform package.
Senator Ben Sasse: (01:02:52)
I’m blessed to have sat not just on the judiciary committee, but also on the finance committee, and lots of the discussions we’ve had in here today fit better in a finance committee hearing than in a judiciary committee hearing. So I think it would be very useful for us to pause and remind ourselves and do some of our civic duty to eighth graders to help them realize what a President runs for, what a Senator runs for, and on the other hand, why Judge Barrett is sitting before us today and what the job is that you’re being evaluated for. So if we can back up and do a little bit of eighth grade civics, I think it would benefit us, and benefit the watching country, and especially watching eighth grade civics classes. So, I’d like to distinguish first between civics and politics, because, the Chairman said at the beginning of this hearing, there was a time when people that would be as different as Ruth Bader Ginsburg… And she was a heroic woman. That’s absolutely true.
Senator Ben Sasse: (01:03:49)
And Antonin Scalia, another brilliant mind and your mentor, people that different could both go through the Senate and get confirmation votes of 95 or 98 votes. And the Chairman said at the beginning of the hearing he doesn’t know what happened between then and now. I think some of what happened between that and now is we decided to forget what civics are and allow politics to swallow everything. So if I can start, I’d like to just remind us of the distinction between civics and politics. civics is the stuff we’re all supposed to agree on regardless of our policy views’ differences. Civics is another way we talk about the rules of the road. Civics 101 is the stuff like Congress writes laws. The executive branch enforces laws. Courts apply them. None of that stuff should be different if you’re a Republican or a Democrat or a Libertarian or a Green Party member.
Senator Ben Sasse: (01:04:43)
This is basic civics. Civics is the stuff that all Americans should agree on, like religious liberty is essential. People should be able to fire the folks who write the laws, and the voters can’t fire the judges. Judges should be impartial. This is just Civics 101. Politics is different. Politics is the stuff that happens underneath civics. Civics is the overarching stuff we as Americans agree in common. Politics is the subordinate, less important stuff that we differ about. Politics is like if I look at my friend, Chris Coons, and I say, “Listen up jackwagon, what you want to do on this particular finance committee bill is going to be way too expensive and might bankrupt our kids.” Or if Chris looks back at me and says, “Listen up jackwagon, you’re too much of a cheapskate, and you’re under-investing in the next generation.”
Senator Ben Sasse: (01:05:31)
That’s a really important debate. That’s a political debate. That’s not civics. Civics is more important than that. civics doesn’t change every 18 to 24 months because the electoral winds change or because polling changes. I think it’s important that we help our kids understand that politics is the legitimate stuff we fight about, and civics is the places where we pull back and say, “Wait a minute, we have things that are in common.” And before we fight again about politics, let’s reaffirm some of our civics. So, I’d like to have just sort of a basic grammar of civics for five minutes. One thing that we should all agree on and two things that we should all disagree with… We should agree on it. But one thing that we agree about and are in favor of, and two things that we agree on that we should all reject.
Senator Ben Sasse: (01:06:15)
First, a positive grand unifying truth about America, And that is religious liberty. Religious liberty is the basic idea that how you worship is none of the government’s business. Government can wage Wars, government can write parking tickets, but government cannot save souls. Government’s really important, or as important. Parking tickets are important, but your soul is something that the government can’t touch. So whether you worship in a mosque or a synagogue or a church, your faith or your lack of faith is none of the government’s business. It’s your business, and your family’s, and your neighbor’s, and all sorts of places where people break bread together and argue, but it’s not about power. It’s not about force. It’s not about the government. This is the fundamental American belief. Religious liberty is one of those five great freedoms clustered in the first amendment, religion, speech, press, assembly, and protest. These five freedoms that hang together that are the basic pre-governmental rights are Civics 101 that we all agree on well before we ever get to anything as relatively inconsequential as tax policy.
Senator Ben Sasse: (01:07:22)
So civics should be the stuff we affirm together. And contrary to the belief of some activists, religious liberty is not an exception. You don’t need the government’s permission to have religious liberty. Religious liberty is the default assumption of our entire system. And because religious liberty is the fundamental 101 rule in American life, we don’t have religious tests. This committee isn’t in the business of deciding whether the dogma lives too loudly within someone. This committee isn’t in the business of deciding which religious beliefs are good, and which polit religious beliefs are bad, and which religious beliefs are weird. And I just want to say, as somebody who’s self-consciously a Christian, we’ve got a whole bunch more, really weird beliefs. Forgiveness of sins, the virgin birth, resurrection from the dead, eternal life.
Senator Ben Sasse: (01:08:10)
There are a whole bunch of really, really crazy ideas that are a lot weirder than some Catholic moms giving each other advice about parenting. And yet there are places where this committee has acted like it’s the job of the committee to delve into people’s religious communities. That’s nuts. That’s a violation of our basic civics. That’s a violation of what all of us believe together. This is not a Republican idea. It is not a Democrat idea. It’s a Democrat idea and a Republican idea, but more fundamentally, it’s an American idea. And the good news is whether you think your religious beliefs might be judged wacky by someone else, it’s none of the business of this committee to delve into any of that in this context. Because in this committee, and in this Congress, and in this constitutional structure, religious liberty is the basic truth, and whatever you, or I, or Judge Barrett believe about God isn’t any of the government’s business.
Senator Ben Sasse: (01:09:05)
We can all believe in that in common. We should all reaffirm that in common, and that should be on display over the course of the next four days in this committee. Now, a couple of terms that all of our eighth graders should know as things we should reject in common. And again, shared rejection. Not Republican versus Democrat or Democrat versus Republican, but a shared American rejection. And the first is this. Judicial activism. Judicial activism is the idea that judges get to advocate for or advance policies even though they don’t have to stand for election before the voters, and even though they have lifetime tenure. Judicial activism is the really bad idea that tries to convince the American people to view the judiciary as a block of progressive votes and conservative votes, Republican justices and democratic justices. This is the confused idea that the Supreme Court is just another arena for politics.
Senator Ben Sasse: (01:10:01)
When politicians try to demand that judicial nominees who are supposed to be fair and impartial… When politicians try to get judicial nominees to give their views on cases or to give their views on policies, to try to get them to pre-commit to certain outcomes in future Court cases, we are politicizing the Courts, and that is wrong. That is a violation of our oath to the constitution. Likewise, when politicians refuse to give answers to the pretty basic question of whether or not they want to try to change the number of justices in the Court, which is what Court packing actually is… When they want to try to change the outcome of what Courts do in the future by trying to change the size and composition of the Court, that is a bad idea that politicizes the judiciary and reduces public trust. On the other hand, depoliticizing, the Court looks a lot like letting Courts and judges do their jobs, and the Congress do our jobs.
Senator Ben Sasse: (01:11:01)
You don’t like the policies in America, great. Elect different people in The House, and in the Senate, and in the presidency. Fire the politicians at the next election. But voters don’t have the freedom to fire the judges, therefore we should not view judges, and we should not encourage judges or the public to view them, as ultimately politicians who hide behind their robes. The antidote to judicial activism is Originalism. Originalism, also known as textualism, is basically the old idea from eighth grade civics that judges don’t get to make laws. Judges just apply them. An Originalist comes to the Court with a fundamental humility and modesty about what the job is that they’re there to do. An Originalist doesn’t think of herself as a super legislator whose opinions will be read by angels from stone tablets in heaven. Judicial activism, on the other hand, is the bad idea that judges’ black robes are just fake, and truthfully they’re wearing red or blue partisan jerseys under there. We should reject all such judges.
Senator Ben Sasse: (01:12:03)
And so today, when we have a nominee before us, we should be asking her questions that are not about trying to predetermine how certain cases will be judged. And a final term that we should be clear about… I mentioned earlier, but I think it’s worth underscoring… Is we should underscore what is Court packing? Court packing is the idea that we should blow up our shared civics, that we should end the deliberative structure of the Senate by making it just another majoritarian body for the purposes of packing the Supreme Court. Court packing would depend on the destruction of the full debate here in the Senate, and it is a partisan suicide bombing that would end the deliberative structure of the United States Senate and make this job less interesting for all 100 of us. Not for 47 or 53, because it’s hard to get to a super majority that tries to protect the American people from 51-49, 49-51 swings all the time.
Senator Ben Sasse: (01:12:56)
What blowing up the filibuster would ultimately do is try to turn the Supreme Court into the ultimate super legislature. Court packing is not judicial reform, as some of you who wrote the memo over the weekend got a lot of media to bite on. Court packing is destroying the system we have now. It is not reforming the system we have now. And anybody who uses the language that implies filling legitimate vacancies is actually just another form of Court packing… That’s playing the American people for fools, and the American people actually want a Washington DC that depoliticizes more decisions, not politicizes more decisions. So Judge, I’m glad that you’re before us, I’m looking forward to hearing your opening statement later today, and I look forward to the questioning you have to endure over the next two or three days, even though you probably look forward to it a little bit less. Congratulations, and welcome.
Speaker 1: (01:13:49)
Senator Chris Coons: (01:13:50)
Thank you, Mr. Chairman. Judge Barrett, to you and your family, welcome. Over the past weeks, I’ve been flooded with calls, texts, emails from Delawareans. Delawareans who are scared because they are worried. Worried about their own health, the health of a parent or child, because they don’t know if it’s safe for their kids to go to school, if their businesses will survive, or because they’re wondering why on earth this Senate is focused on racing forward with a Supreme Court nominee, but is not willing to take a vote to provide needed relief for them and their families. It is an understandable question when we’re in the midst of a devastating global pandemic in which more than 210,000 Americans have died. More than 7 million have been infected and have a new pre-existing condition. Why, there were just 300,000 new cases this week. And today, more than 25 million Americans are collecting unemployment.
Senator Chris Coons: (01:14:47)
This is an ongoing national emergency, and as an exercise in civics, not politics, we in Congress should be working day and night to deliver them that relief. Instead, my colleagues are barreling forward with a confirmation hearing that’s distracting from our responsibility to our constituents and threatens to further tear our nation apart. Mr. Chairman, as you know, we’re just 22 days from an election. There is no precedent, despite my colleagues lengthy, and I think hypocritical lecture about the history, there is no precedent in our nation’s history for confirming a Supreme Court nominee by the Senate this close to a Presidential election in which a majority of States are already voting. In fact, 6 million Americans have voted. This process flies in the face of the very rule Republican set themselves in 2016 when they refused, as a matter of politics, not of civics, to even consider a highly qualified nominee, Judge Merrick Garland, nine months before an election, simply because it was an election year.
Senator Chris Coons: (01:15:59)
And Mr. Chairman, in 2018, you went a step further, and said if an opening on the Supreme Court came up in the last year of President Trump’s term, you would wait until the next election and let the voters decide. So what changed? Sadly, nothing. Nothing except the fact that this time President Trump and his allies in the Senate saw a chance in Justice Ginsburg’s untimely passing to shift the balance of the Supreme Court for decades to come, and that will have consequences in the real lives of millions of Americans. Proceeding with this confirmation today is wrong. And if I could, to my colleague who just spoke, religious liberty I agree is foundational to our civics and our Republic. And I and my colleagues will focus, Judge Barrett, on your legal writings, your opinions, your articles, your speeches as a law professor and judge.
Senator Chris Coons: (01:16:52)
And I think when we do that, we will conclude the ways in which you may serve as a justice will do irreparable harm. I think proceeding with this nomination in this way at this time will also do harm to what remaining trust we have in each other, to the Senate as a whole, and potentially to the Court itself. As if all of this weren’t reason enough for us to delay, we’re proceeding despite having two members of this committee who’ve contracted the virus. That’s why the Senate’s out of session today. That’s why all of us, when not speaking, are wearing masks. That’s why the distance between us. In light of all of this led to the stresses on our country, I think this rushed, hypocritical, partisan process should not proceed. But instead we are, so let me try and help explain to those who’ve reached out to me why and why it matters. Centrally, it’s this. President Trump has promised over and over and over again that he would repeal the Affordable Care Act. He ran on that promise, but despite his very best efforts, he’s failed. My Republican colleagues here and in The House have voted over and over …
Senator Chris Coons: (01:18:03)
… colleagues here and in the House have voted over and over and over to repeal the Affordable Care Act since it was passed a decade ago, but thankfully, for the people of our nation and my state, they too have been unsuccessful. And yet today to make good on this promise to achieve what they could not accomplish through the democratic process, they’re looking to the courts, in fact, to the court. They’re looking to this nominee. President Trump explicitly promised anyone he nominated to the Supreme Court would “do the right thing” and be a vote to overturn the Affordable Care Act. And just one week after the upcoming election, the Supreme Court will hear a case in which the Affordable Care Act is at issue and where the Supreme Court will hear argument that supports the Trump administration and the Trump’s Department of Justice position strike down this landmark law.
Senator Chris Coons: (01:18:53)
So let me be clear: just a week after the upcoming election, the Trump administration will be telling the Supreme Court to tear down the very law that provides healthcare protections in the middle of an ongoing pandemic. Judge Barrett, you’ve publicly criticized the Supreme Court’s past decisions upholding the Affordable Care Act, and I think that is appropriately at issue in the days to come. The President knows this, and it’s one reason why he and my colleagues are rushing to have this confirmation just in time to hear the administration’s challenge to the Affordable Care Act. I don’t think this a coincidence. It’s beyond ironic that this administration, which has failed to respond to this pandemic, is rushing through a judge they believe will vote to strip away healthcare protections.
Senator Chris Coons: (01:19:41)
Today, because of the Affordable Care Act, insurance companies cannot discriminate against women for being women. They cannot charge more. They cannot treat pregnancy as a pre-existing condition. I cannot think of a sharper irony as we consider the legacy of Justice Ginsburg, who dedicated her life to fighting for gender equality. It also prevents insurance companies from charging any with pre-existing conditions more, so Americans don’t longer have to worry about going bankrupt because of an unexpected illness or accident. Don’t take my word for it. Listen to the voice of Carrie, who’s behind me to my right. Carrie, from Middletown Delaware, used to pay $800 a month for “junk insurance”, as she called it. Coverage so skimpy, she had to live in fear of going to the doctor’s office or needing medication. Because of the ACA, she was able to get better coverage to pay what she can afford based on her income. She has diabetes, she has high blood pressure, but thanks to the ACA, she can’t be denied care or coverage.
Senator Chris Coons: (01:20:44)
She told me when we spoke, “This takes the stress and the worry out of it.” And then asked me, “How is this even at issue? Wasn’t that settled years ago?” Carrie’s right. She should have the peace of mind that you can care for yourself and your family if you get sick. I’ve heard so many more stories from Delaware, just over my shoulder here is Debbie from Newcastle, a self-employed small business owner who receives her health insurance through the marketplace. Her preexisting condition requires her to attend physical therapy and doctor’s appointments multiple times each month. Without the ACA, insurance companies would have charged her more because of her condition, and she wouldn’t be able to afford her medical bills and support her small business. There’s Barb Slater from Newark, Delaware, who was diagnosed with scleroderma four years ago. After losing her employer sponsored health insurance, she was able to find new coverage in the marketplace thanks to the Affordable Care Act.
Senator Chris Coons: (01:21:41)
My inbox, and the inbox of all my colleagues, are filled with stories like Carrie’s, Debbie’s, Barb’s, and they highlight the breadth of what the ACA means to the American people. The ability of young people to stay in their families insurance, lower out of pocket costs for seniors’ prescriptions, the elimination of lifetime caps. These protections are on the line in the ballot and on the docket of the Supreme Court.
Senator Chris Coons: (01:22:05)
And it’s not just the ACA at risk. Judge, I’m deeply concerned about ways in which your approach to something that may sound abstract to folks watching, stare decisis or precedent, that means your approach to reviewing, and reconsidering, and possibly overturning long settled cases may overturn some of the very principles for which Justice Ginsburg fought her entire adult life, principles that protect settled, fundamental rights for all Americans. What might this mean? Cases like Griswold versus Connecticut, that established married couples have a right to obtain and use contraception in the privacy of their own home may be in danger of being struck down.
Senator Chris Coons: (01:22:50)
It means cases like Roe vs. Wade, which protects a woman’s right to make her own critical health care decisions, may be on the line. And it means Obergefell versus Hodges, which made marriage equality the law of this land, could be overruled just a day after we celebrated Coming Out Day nationally, stripping LGBTQ individuals of what Justice Kennedy memorably called “equal dignity in the eyes of the law.” This is what I believe is at stake with this nomination.
Senator Chris Coons: (01:23:21)
Judge Barrett, you will be deciding cases that have real daily impacts on the lives of millions of Americans. They deserve to understand why President Trump nominated you and what consequences your decisions may have on them and their lives. I’ve heard my Republican colleagues say all they care about is finding a future justice who will apply the law as written, as if all this is about today is an abstract fight about interpretive methodology and jurisprudence. They seem shocked. We’re talking about what the Supreme Court might do if Judge Barrett were to become Justice Barrett.
Senator Chris Coons: (01:23:57)
Judge Barrett, I’m not suggesting you made some secret deal with President Trump, but I believe the reason you were chosen is precisely because your judicial philosophy, as repeatedly stated, could lead to the outcomes President Trump has sought. And I think that has dramatic and potentially very harmful consequences with regards to the election, the Affordable Care Act, and long settled rights. This is what I intend to lay out this week, and this is what I hope the American people will hear in the course of this confirmation hearing. Thank you, Mr. Chairman.
Chairman Graham: (01:24:31)
Thank you, Senator Coons. For planning purposes, I think I talked to Senator Feinstein. We will go to Senator Hawley, Blumenthal, and Tillis, we’ll take a 30 minute break to grab a bite to eat and take a little bit of a break and come back and finish up. So Senator Holly.
Senator Josh Hawley: (01:24:51)
Thank you Mr. Chairman. Judge Barrett, welcome. It’s good to see you again. Jesse Barrett, welcome, and to you into your family as well. I see that to some of your children are getting a break, they’ve earned it, I think. I’m amazed as I’ve been watching, I’ve got two little boys at home, my wife and I do, I can’t believe how calmly your children have been sitting for a couple of hours. So maybe you can give me some tips, Jesse and Judge, when we’re finished here.
Senator Josh Hawley: (01:25:16)
We’ve gotten to read a lot about to your family in the last few weeks, we’ve gotten to read a lot about you in the press, and in particular about your religious beliefs, one attack after another, in the liberal media, one hit piece after another, many of them echoed by members of this committee, like this one, for instance, “Barrett Long Active with Insular Christian Group.” We’ve read stories about your Catholic lifestyle, stories about how you raise your children, stories about how you adopted your children, stories about your Catholic doctrinal beliefs over and over and over, questioning whether you have, I guess, the independence to be a Judge, a Justice on the United States Supreme Court.
Senator Josh Hawley: (01:25:54)
And it’s not just in the newspapers, it’s members of this committee, including the democratic nominee for Vice President of the United States, who has questioned past nominees who have come before this committee about their membership in Catholic fraternal organizations, like the Knights of Columbus. And for those watching at home, that’s right, you heard me correctly, Senator Harris and others on this committee have repeatedly questioned judicial nominees fitness for office because of their membership in the Knights of Columbus. The ranking member, when you were last before this committee, Judge, for your initial confirmation hearings, the ranking member referred to your Catholic convictions as “dogma.” That’s a quote “that lives loudly within you.”
Senator Josh Hawley: (01:26:36)
Picking up the very terminology of anti-Catholic bigotry current in this country a century ago, she wasn’t alone. Other senators on this committee last time asked you if you were an Orthodox Catholic. One Senator said she worried that you would be a Catholic Judge if you were confirmed because of your religious beliefs, I guess, as opposed to an American judge, as if you can’t be both a devout Catholic and a loyal American citizen. And it’s not just you, Judge. Other nominees who have come before this committee for years now have been asked by my Democrat colleagues over and over their views on sin, their views on the afterlife, their views about their membership statements of Catholic organizations, about their membership in other Christian organizations and on and on and on. And let’s be clear about what this is.
Senator Josh Hawley: (01:27:28)
This is an attempt to broach a new frontier, to set up a new standard. Actually, it’s an attempt to bring back an old standard that the Constitution of the United States explicitly forbids, I’m talking about a religious test for office. Article Six of the Constitution of the United States, before we even get to the Bill of Rights, Article Six of the Constitution of the United States says clearly, and I quote, “no religious test shall ever be required as a qualification to any office or public trust under the United States.” Now that was big news in 1787, when it was written, and it’s worth remembering why. It’s because no country, no Republic in the history of the world had ever guaranteed to its citizens the right to freedom of conscience, and religious liberty. Every other country that had ever existed tied together the religious beliefs that would be approved by the powerful, and the right to serve in office, or to vote or just to be a citizen.
Senator Josh Hawley: (01:28:33)
In every other country across history, you had to agree with what those in power agreed with in order to hold office or be a citizen in good standing. You had to sign a particular religious confession, or you had to disavow particular religious groups, swear not to follow the Pope, for instance, you had to pledge allegiance to the God of the city, or the God of the empire.
Senator Josh Hawley: (01:28:56)
This was true from 18th century Britain all the way back to ancient Rome. So when our founders put Article Six into the Constitution in the United States, they were making a very deliberate choice. They were breaking with all of that past history and they were saying in America, it would be different. In the United States of America, we would not allow the ruling class to have veto power over your faith, over what Americans believed, over who we gathered with to worship, and why, and where, and how. No, in this country, the people of the United States would be free to follow their own religious convictions, free to worship, free to exercise their religion, and people of faith would be welcome in the public sphere.
Senator Josh Hawley: (01:29:45)
They’d be welcome there. They’d be welcomed without having to get the approval of those in power, like those on this committee, they would be welcome to come and to bring their religious beliefs to bear, on their lives, on their office, and all that they do, so long of course, as they were peaceful citizens who follow the law. Religious people of all backgrounds would be welcome in public life, and no person in power would be able to control what the American people, any American citizen, thought or believed or who they worshiped. This freedom of conscience and religious liberty undergirds all of our other rights, because it tells the government that it cannot tell us what to think, or who we can assemble with, or how we can worship, or what we can say. And that’s why Article Six is there even before we get to the Bill of Rights and the First Amendment, but this bedrock principle of American liberty is now under attack.
Senator Josh Hawley: (01:30:47)
That is what it is at stake when we read these stories attacking Judge Barrett for her faith. That is what is at stake when my Democratic colleagues repeatedly questioned Judge Barrett and many other judicial nominees about their religious beliefs, about their religious membership, about their religious practices, about their family beliefs and practices. That is an attempt to bring back the days of the religious test. That is an attempt to bring back the veto power of the powerful over the religious beliefs and sincerely held convictions of the American people. And that is what is at stake in this confirmation hearing.
Senator Josh Hawley: (01:31:27)
Judge Barrett is a Catholic, we all know that. She’s a devout Catholic, we all know that. She and her husband have chosen to raise their family according to their Catholic beliefs, in faithful fellowship with other Catholics, we all know that. Heck 65 million Americans are Catholics and many, many millions more are Christians of other persuasions. Are they to be told that they cannot serve in public office? That they are not welcome in the public sphere unless the members of this committee sign off on their religious beliefs? I, for one, do not want to live in such an America. And the Constitution of the United States flatly prohibits it.
Senator Josh Hawley: (01:32:08)
Now, the Constitution says that people of faith, like Judge Barrett, are welcome in high office, welcome in any office, welcome throughout our public life here in this country. And I would just say to my Democrat colleagues that these years now, this pattern and practice, as we say in the law, this pattern and practice of religious bigotry, because that’s what it is. When you tell somebody that they’re too Catholic to be on the bench, when you tell them they’re going to be a Catholic judge, not an American judge, that’s bigotry.
Senator Josh Hawley: (01:32:38)
The pattern and practice of bigotry from members of this committee must stop, and I would expect that it be renounced. Now, I just heard my colleague, Senator Coons make a reference to an old case, the Griswold case, which I can only assume is another hit at Judge Barrett’s religious faith, referring to Catholic doctrinal beliefs. I don’t know what else it could be since no one has challenged this case. It is not a live issue and hasn’t been for decades. This is the kind of thing I’m talking about, and this is the sort of attacks that must stop. I look forward, Judge Barrett, to getting to the chance to speak with you further about your legal credentials, about your legal views, about your approach to the law, and your judicial philosophy.
Senator Josh Hawley: (01:33:26)
But I hope that one thing that this confirmation process will stand for in the end, I hope when we look back at the confirmation hearings for Judge Amy Barrett, soon I hope to be Justice Amy Barrett, one thing we will say is, “That was the time, that was the year that the attempt to bring back religious tests for office was finally stopped.”
Senator Josh Hawley: (01:33:47)
Thank you, Mr. Chairman.
Chairman Graham: (01:33:48)
Senator Richard Blumenthal: (01:33:54)
Thank you Mr. Chairman, Judge Barrett, and to your family, welcome to the committee. I want to introduce you to one of my constituents, Connor Kern of Ridgefield, Connecticut. He is 10 years old and he suffers from Duchenne muscular dystrophy. It is a horrible, incurable disease. It slowly deprives children of the strength and their ability to move, eventually it robs them of their lives. The costs of providing Conner’s care are astronomical, but for Connor and his family, it is worth every penny. Connor is a superhero, but he’s always had a real sidekick: he’s had the protection of the Affordable Care Act. It has shielded him and his family from arbitrary caps on coverage that would have cut off his care when it became too expensive. It has protected Connor from losing insurance because of this insidious disease that he never caused and chose.
Senator Richard Blumenthal: (01:35:16)
The Affordable Care Act has given his family a measure of relief, of hope, of peace. They still worry about Connor’s health, but not their coverage or its costs. Connor, and millions of others like him, are why I will oppose your nomination. Your nomination is about the Republican goal of repealing the Affordable Care Act, the Obamacare they seem to detest so much. It’s about people like Connor, protections for people with pre-existing conditions, tax credits that make health insurance more affordable, bans on charging women more simply because they are women. That’s what my Republican colleagues have been trying to appeal for the last decade. They’ve voted dozens and dozens of times to repeal the Affordable Care Act, and they have challenged it twice, unsuccessfully, in the United States Supreme Court. And each time they failed, but now, just one week after the election, as you know, the fate of the Affordable Care Act will be again in the hands of the United States Supreme Court.
Senator Richard Blumenthal: (01:36:36)
Republicans have turned, again, to the court to try to achieve judicially what they cannot achieve legislatively. President Trump has vowed that any judge he nominated would pass the “very strong test”, his words, and that they would strike down the Affordable Care Act. Judge Barrett, in all honesty, you have auditioned for this job through your academic writing and judicial opinions, and you’ve passed that test. In fact, you’ve stated twice in effect that you would have voted to strike down the Affordable Care Act had you been a Justice at the time. You’ve been vetted, you’ve been screened by the Trump administration and special interests who want an activist judge. They want someone who will legislate from the bench and strike down laws supported by a vast majority of the American people. And that activism uses originalism as a smoke screen.
Senator Richard Blumenthal: (01:37:54)
If the American people have any doubts about how dedicated my Republican colleagues are to taking away people’s healthcare, just listen to their own words. They’ve been remarkably candid and forthright. Senator Graham, our chairman, has said, “You can’t repair this monstrosity.” I’m quoting. “You can’t repair this monstrosity called Obamacare. You have to tear it down and start over.” Senator Ernst has said, “I support immediate action to repeal Obamacare and replace it.” Senator Cornyn, “It’s time to the repeal and replace.” Senator Tillis, “Repeal Obamacare. Let’s end this disaster.” And President Trump himself has said, “We want to terminate Obamacare.”
Senator Richard Blumenthal: (01:38:55)
Millions of Americans, more than 130 million, have a preexisting condition. Asthma, heart disease, diabetes, cancer, Parkinson’s, pregnancy. And now, by the cruelest of ironies, COVID-19. COVID-19, the cause of this pandemic, now is a preexisting condition that could prevent millions of Americans from being covered by healthcare, stripping healthcare from millions of Americans during a pandemic. That’s really what is at stake in the Republican lawsuit, now before the Supreme Court, and in this nomination. And sadly, it’s not just the Affordable Care Act that’s at stake. It’s a woman’s right to decide when and how to have a family, control over her own body. An activist judge on the bench, doing what Congress could not do, would also strike down common sense gun safety laws.
Senator Richard Blumenthal: (01:40:10)
Connecticut has been at the forefront on gun violence protection. On gun safety, Judge, you acknowledged that your dissenting opinion and candor sounds kind of radical. That’s because it is. But if your views on the Second Amendment are adopted by the Supreme Court, it would imperil common sense state laws, like Connecticut’s, all around the country. Today, we’ve got to be working on improving American healthcare. We’ve got to be fighting COVID-19, which has infected 8 million Americans and killed more than 215,000. We should be producing a national testing strategy, instituting effective contact racing, and securing sufficient PPE. We ought to providing assistance to the millions of Americans who have lost their jobs.
Senator Richard Blumenthal: (01:41:13)
… and heartbreak. President Trump has failed to do any of it. Instead, he and our Republican colleagues are riveted on rushing a judge through this sham process, dropping everything else. President Trump’s failure to act will likely lead to 55,000 additional deaths, 55,000 additional Americans lost, over just next three months. Senate Republicans are refusing to address American health care, or COVID-19, or economic relief because they care more about putting an extremist ideological judge on the bench, and not just on the Supreme Court.
Senator Richard Blumenthal: (01:42:06)
I’ve learned as a Senator that there are very few unwritten rules, very few written rules, I should say, in this place, but there is one very important unwritten rule: keep your word. Republicans have all sorts of excuses for why they are breaking their promise, the promise that they would not confirm a Supreme Court Justice during an election year. Each excuse boils down to nothing more than raw political power, they’re doing it because they can. But might does not make right. They have boasted they have the votes, but they don’t have the American people, and they don’t have history on their side. The American people want a plan to fight and conquer this disease. They want a plan to put Americans back to work. They want a blueprint for the future, not rolling back rights and turning back the clock.
Senator Blumenthal: (04:03)
I revere the Supreme Court. I clerked for Justice Harry Blackmun, I’ve argued cases before the court four times. Now, I’m really deeply concerned that Supreme Court is losing the trust and respect of the American people. The authority of the Supreme Court depends on that trust. It has no army or police force to enforce its decisions. The American people follow the Supreme Court’s commands even when they disagree because they respect its authority. And now, President Trump and the Republican senator are eroding, indeed destroying that legitimacy.
Senator Blumenthal: (04:49)
They’ve stripped the American people of their say in this process simply to confirm a justice who will strike down in court, legislate from the bench what they can’t repeal in Congress. Your participation, let me be very blunt, in any case involving Donald Trump’s election would immediately do explosive, enduring harm to the court’s legitimacy and to your own credibility. You must recuse yourself. The American people are afraid and they’re angry, and for good reason. It’s a break-the-glass moment. Americans must use their voices to speak out and stand up, to contact my colleagues on this committee, despite their boast about having the votes. Stand up and speak out to protect their own health, public health, and the health of our democracy. Thank you, Mr. Chairman.
Chairman Graham: (05:59)
Thank you, Senator Blumenthal. We will now have Senator Tillis who’s with us remotely. After his opening statement, we will come back at 12:20 and Senator Hirono, You will be the first one to make a statement. So, Senator Tillis.
Senator Tillis : (06:17)
Thank you, Chairman Graham and Ranking Member Feinstein. I want to take a moment to honor the life and legacy of Justice Ginsburg. She was a living legend and a giant in the legal world as a professor, as a lawyer, and as a judge, and a justice. She was an inspirational model and role model, and we honor her legacy. And I just want to make sure that her family knows, the nation mourns her loss. But today, we’re here to consider a nomination of a highly qualified jurist to the United States Supreme Court, Judge Amy Coney Barrett.
Senator Tillis : (06:48)
She’s a top legal scholar, a professor in the mold of the late Justice Scalia. Her work is widely respected in the legal community, and it’s clear why her former students voted her multiple times to be the Distinguished Professor of the Year at Notre Dame Law School. It’s also why every full-time faculty member of Notre Dame Law supports her nomination. Her legal work and teaching have inspired hundreds of young lawyers, especially aspiring female lawyers. She’s a remarkable mother. She has seven beautiful children. And in spite of being busy working as a Seventh Circuit justice, she makes time to be involved in her community.
Senator Tillis : (07:25)
This nomination is important because it’s going have a lasting impact on our Republic. A Justice’s service on the bench involves every important issue facing our constitutional republic. What are the limits of abusive and intrusive government power? What’s the proper role of each branch of government? What are the fundamental protections that our Constitution grants all Americans? These are foundational questions for the Supreme Court and they consider them every single term. If confirmed, Judge Barrett will be tasked with answering these questions, and I believe she’s going to do a great job.
Senator Tillis : (07:58)
But it’s not the rights enshrined in the Constitution that is most important, it’s the structure of the document itself that ensures our freedom. Justice Scalia understood this. He was fond of saying, “Every dictator in the world, every president for life has a Bill of Rights.” That’s not what makes us free, what makes us free is our Constitution. Think of the word “constitution.” It means structure. Justice Scalia went on to note “the genius” of our founding generation is that it disperse power across multiple departments. The real danger to our constitutional republic is the centralization of power in any one part of government. When that happens, liberty dies and tyranny reigns. That’s why it’s critical that Supreme Court Justice maintain their proper role. They decide cases, they don’t make policy.
Senator Tillis : (08:45)
In recent decades, the Court has drifted towards a trend where it decides majority disputes over policy rather than reserving those decisions for the American people, through acting through their elected representatives. People like those of us in U.S. Senate. Article III judges cannot, and should not be policymakers. We’ve heard many speak today about a policy priorities that they’d like an activist court to pass. Several of my colleagues have engaged in fear-mongering and described Judge Barrett’s nomination as an end to healthcare, abortion rights, labor rights, and the list goes on and on and on. These statements are unfair and are untrue. This week, they’ll attempt to have Judge Barrett commit to policy outcomes rather than do the work for that policy outcome in the U.S. Senate.
Senator Tillis : (09:32)
Just last month, while they were falsely claiming Judge Barrett’s nomination would bring an end to protections for pre-existing conditions, every single Democrat on this committee voted against a measure that would do just that. They are failing to do their job and they want the Court to do it for them.
Senator Tillis : (09:50)
My review of Judge Barrett’s record convinces me she’s not only one of the most qualified individuals to ever be nominated, but she also understands the proper role of the Article III branch. She reaches conclusions dictated by the law, not by personal preference. That’s the right thing to do.
Senator Tillis : (10:07)
My Democratic friends decry the idea that a nominee has a predetermined outcome in mind while in the same breath they demand the nominee agree to their preferred outcome of a case. The hypocrisy is incredible. They ignore a central fact, Judge Barrett’s rulings aren’t meant to be for or against a particular policy outcome. She’s not a legislator. That’s our job. However, when the minority can’t get their bad policies passed in Congress, they turn to the courts to demand that judges interpret the law not as written, but as they prefer. Her opinion simply order the outcome the law dictates, as passed by Congress, a politically accountable branch. Nothing more, and nothing less.
Senator Tillis : (10:50)
My Democratic colleagues claim to care about the First Amendment, the Fifth Amendment, the Fourteenth Amendment. If they care about our constitutional liberties, then they should care about confirming a judge who understands the proper role of the Supreme Court. Rights granted by IX can just as easily be ended by IX. To quote Justice Ginsburg “Real change, enduring change, happens one step at a time.” It doesn’t happen by judicial fiat.” Judge Barrett understands that principle. She knows the role of a Supreme Court Justice, and she is highly qualified to do this job.
Senator Tillis : (11:22)
Judge Barrett, when I met with you in the Capitol, I asked you to sign two pocket constitutions for my two granddaughters and in it you wrote, “Dream big.” When they are old enough to understand the significance, I’m going to explain to them that just like Justice Barrett, they can, with hard work and determination, realize their American dream. So, for the next few days, when members of this Committee mischaracterize your views, their allies in the liberal media are saying terrible things about you and your family, stand tall, stand proud, and stand true. Rely on your faith, and know that you are an inspiration to millions of young women in this country, like my granddaughters, and we are proud of you.
Senator Tillis : (12:03)
Thank you Judge Barrett for being with us today. Congratulations on the recognition of your hard work and your character. I look forward to hearing your testimony. Thank you, Mr. Chairman.
Chairman Graham: (12:15)
Thank you, Senator Tillis. We’ll be in recess until 12:20. We’ll start back with Senator Hirono.
Judy Woodruff: (12:24)
And with that, the Chairman of the Senate Judiciary Committee, Lindsey Graham calls the committee to a break. He said about a half hour break for what he called a short lunch.
Judy Woodruff: (12:35)
You see a Judge Barrett walking out of the courtroom with her husband and perhaps several of their children. Some of the children left the hearing. There they are. I guess they came back in.
Judy Woodruff: (12:47)
We’d been watching for the last two and a half hours as the Senate Judiciary Committee in a tableau, a scene that we have never seen before. A Supreme Court confirmation hearing with members of the Senate socially distanced themselves in their seats, a smaller number than usual of people in attendance, very few reporters, news reporters. But of course, the judge who was the nominee herself, seated there with her family behind her. They’re taking a half hour break. They will come back. And while we wait, we are going to be talking with our analysts.
Judy Woodruff: (13:28)
I’m Judy Woodruff in our NewsHour studio. We’ve been covering this from the beginning and I want to turn to re-introduce our analysts. They are Marcia Coyle, who’s a NewsHour regular, Victoria Nourse of Georgetown University. Earlier, she served as chief counsel to then Vice President Joe Biden and his counsel to the Senate Judiciary Committee when Joe Biden was its chairman. And Saikrishna Prakash. He’s a constitutional law scholar at the University of Virginia. He’s a former clerk to Justice Clarence Thomas. And we should say that he has been contacted by the Judiciary Committee potentially about testifying on Thursday as a witness in favor of Judge Barrett’s confirmation.
Judy Woodruff: (14:12)
So, we thank all of you. And I’m going to turn to you first, Marcia Coyle. I was just saying, this is a hearing like none we’ve seen before because we are in a pandemic, because there are social distancing, and yet the Democratic members of the committee, the Republican members of the committee predictably came right out of the gate with their very strong positions for and against Judge Barrett.
Marcia Coyle: (14:39)
Judy, I think the value of opening statements is really to just lay out the parameters, the questions, and issues that are going to be coming up in the next two days. I think on the Democratic side, those senators have been singularly focused on one process. They’re repeating over and over again that this is a rushed process, and it’s coming at a time when the Senate should be focused on coming up with an aid package for those suffering the consequences of the coronavirus. So, we’re hearing a lot about the timing.
Marcia Coyle: (15:20)
Also, they’re really singularly focused on the Affordable Care Act and the fact that a week after the November election, the U.S. Supreme Court will be hearing a challenge brought by, I believe about 18 Republican-led states that are urging the Supreme Court to find that what the Senate and the House did back in 2017 to that law made it unconstitutional and the Court should take down the entire law. So, they’re trying to make a case to the public [inaudible 00:16:01] of a Justice Barrett going on the Court and her vote in that case.
Marcia Coyle: (16:09)
On the Republican side, Judy, I’m hearing a lot about religion, religious attack on this nominee. The truth is that it seems as though Republicans are talking more about religion than the Democrats are. There have been articles about Judge Barrett’s membership in this religious, Catholic-related group called People of Praise. But I don’t sense that the Democrats want to make a case out of her religion in the next two days at all. I think they are going to continue to press of the potential of her vote in the Affordable Care Act, as well as several other areas in which she has written about certain legal issues that could come before the Court very soon again, as well as any potential election consequences.
Marcia Coyle: (17:04)
And the Republicans, besides staking out religion, also, we heard that originalism is the antidote to judicial activism. And we know that Judge Barrett does consider herself an originalist. And so, I expect that the Republicans are anticipating perhaps some Democratic questions or attacks on her approach to judging and her [inaudible 00:17:32] on originalism as a method of judicial philosophy. I think they’re just trying to anticipate as well, or make a case to the public, that it is the opposite party, the Democrats who want to pack the courts by adding additional [inaudible 00:17:53] if the Democrats prevail in the next election and take control of the White House and the Senate.
Marcia Coyle: (17:59)
So both sides, it seems to me, are laying out their method in the next couple of days, their plan of attack, their plan of defense. And that, Judy, is something we always see in these Supreme Court confirmation hearings.
Judy Woodruff: (18:15)
No question, Marcia Coyle. And we appreciate the Skype connection, and we appreciate the patience with that. We know that all of our guests, all of our analysts today and reporters are joining us remotely. Let me turn to you Victoria Nourse, because the number of the Democrats have taken it as an assumption that what Judge Barrett would do if she’s seated on the Court is vote to overturn, undo the Affordable Care Act. What is it in her record, in her writing, and her opinions that has led them to this conclusion?
Victoria Nourse: (18:55)
Well, she’s written about the Affordable Care Act cases, and she’s disputed the Chief Justice’s interpretation of the law. So, as one of the senators indicated, there has been a bit of an audition here. She is known for her theoretical writings about originalism. I think the real devil in the details is something called textualism, which we’ll talk about. But it’s pretty much on the record. And she’s also said, “I am a Scalia justice.”.
Victoria Nourse: (19:24)
Now, I personally find that a little disturbing because I think justices should be independent. But nevertheless, we will get on with this and talk about her writings and see where she is on it.
Judy Woodruff: (19:37)
And Victoria Nourse, it’s not only that, it’s her approach to the law that Democrats are coming after. I don’t know how many of them have actually used the word “originalism.” It seems to me they’ve stuck to the Affordable Care Act. We’ve heard a couple of mentions of a women’s reproductive rights, but they are steering away from either, at least so far, dwelling on her faith. She’s a devout Christian, a Catholic, or frankly, dwelling on her position on abortion, on reproductive rights.
Victoria Nourse: (20:16)
Right. And I think that that signals the shift that Justice Scalia really made on the Court. He made statutes, much more important in interpreting statutes. What’s the difference between a statute and the constitution? Well, the Court has typically been viewed as having much more leeway to strike something down if it was clearly unconstitutional. But it has never been the rule until Justice Scalia, in my view, that they could rewrite statutes. Now, she’s going to say, “I don’t rewrite statutes. That’s not what I do.” But look at what they’ve done. Look at the three challenges to the healthcare law.
Victoria Nourse: (20:51)
This is why the senators are so insistent on this. Two of them had nothing to do with the constitution, they had to do with how Congress wrote the law. And under her theory, she would have gone with Justice Scalia to say, what was essentially a typo in the law would have meant that Congress had to repass it. That case would never have gotten to the Court when I went to law school. He changed the Court that way. And so, what we are seeing is a true shift in my view. It’s not about the constitution anymore, it’s about any statute that Congress passes.
Judy Woodruff: (21:25)
Saikrishna Prakash, University of Virginia. And as we mentioned, you were a clerk for Justice Clarence Thomas. What are you hearing in the Republican arguments in defense of Judge Barrett, and in the Democratic charges against her that you think are, or not born out by her writings and by her rulings?
Judy Woodruff: (22:04)
Saikrishna Prakash, I’m not hearing you. Let’s see, are we able to hear you now?
Saikrishna Prakash: (22:10)
Sorry, Judy. I guess I was muted there.
Judy Woodruff: (22:12)
You were muted. If you could just start at the top again. Thank you.
Saikrishna Prakash: (22:15)
Sure, I’m happy to. Judy, I think the Democratic senators are focused on the ACA as others have mentioned. And I think that’s because that’s a politically helpful issue to them during this campaign season. And I think they are suggesting that President Trump has got some sort of ace in the hole. It’s Judge Barrett, and that Judge Barrett will strike down the entire ACA.
Saikrishna Prakash: (22:37)
I don’t think that will happen. I don’t think that when Congress repealed the individual mandate, they implicitly wanted to have the entire act struck down. But that’s the argument that the government is making and that several Republican attorneys generals are making. So, it’s a good issue for the Democrats and they’re playing up to it.
Saikrishna Prakash: (22:55)
As you noted yourself, the Republicans are focused on what was said I think during the last confirmation hearing for Judge Barrett. A focus on her religious background and how that might weigh on her judicial decision-making. But I don’t think the Democrats are going to play that card again, in part because they felt that it backfired on them last time.
Judy Woodruff: (23:17)
Saikrishna Prakash, what about her position on reproductive rights? What do we know from her record? It’s not clear how much Democrats are going to bring this up. They’ve mentioned it in passing this morning, but what do we know from her record about her position on Roe and whether Roe should be overturned?
Saikrishna Prakash: (23:35)
I think she’s identified publicly as pro-life. She’s joined committees and organizations while a Notre Dame professor. But I don’t know if we know what that means for the decision itself. The demise of Roe has been predicted many times and it is yet to be fully overturned. Casey, a largely affirm parts of it. So, I think that will be an area for questioning for the Democratic senators, but as a past nominees have done, I don’t expect her to answer questions about how she decide particular cases. So, it’s all guesswork at this stage, Judy.
Judy Woodruff: (24:09)
Marcia Coyle, I want to come back to you on something else that’s come up. And that is several of the senators brought up the fact that if Judge Barrett is seated on the Supreme Court, she could be in a position to rule if the presidential election is disputed for or against in favor of, or not President Trump. And we flatly, we heard Senator Richard Blumenthal there toward the end, a few minutes ago, just say, “I urge you not to take a position if you’re on the Court.” What’s the precedent there? Have there been justices who’ve been called on or in a position to weigh in after they’ve been selected? We know in 2000, with the Bush v. Gore decision, it certainly came up, but that was well after they’d been seated on the Court. In this case, it would be just a matter of days.
Marcia Coyle: (25:09)
That’s right, Judy, I cannot think of a similar timing situation. I certainly remember that Justice Ginsburg, during the President’s first campaign in 2016, did make some comments that were publicized in which she was critical of then candidate Donald Trump. And there were calls at the time that if he had became president and he had cases that came before her, she should recuse herself because she was showing bias.
Marcia Coyle: (25:46)
As you remembered Judy, she did apologize for those comments. And when later cases after he became president, much later cases came and probably the last term would have been the most direct case involving the president, the subpoenas for his financial information, there was no question about her recusing at all from those cases. And she did not recuse.
Marcia Coyle: (26:12)
Recusal is a very tricky thing at the Supreme Court. It’s not like our federal appellate courts where you have many more judges sitting and if one judge has to recuse, another judge can fill in. When there’s recusal on the Supreme Court, you lose that person.
Marcia Coyle: (26:32)
So, I think the situation that Judge Barrett would face if she becomes a justice and there is an election controversy immediately afterwards would be rather unique. And I suspect that in the next two days, there will be senators on the Democratic side who are going to press her for some kind of commitment about recusal.
Marcia Coyle: (26:58)
She has a general comment about recusal. She does recuse in cases in which her family may be involved. Her husband is a law partner at a law firm. If the firm or her husband is involved in any cases. But nothing of this kind, nothing so specific as an election-related controversy.
Marcia Coyle: (27:22)
So, that is something I think, again, that the Senator on the Democratic side will press her about. And that is something that if it comes to that, she has to make her own decision about recusal. The Chief Justice has said in the past that each justice makes that decision for him or herself when faced with a potential conflict
Judy Woodruff: (27:46)
Victoria Nourse, what do we know about anything she said in the past? And in terms of precedent about what she might do if the court is called on to weigh in at a disputed presidential election this year?
Marcia Coyle: (28:05)
Well, I would hope that the Court and the Chief Justice would understand that it is to the American people to decide who is the president of the United States. They should never have decided Bush versus Gore. It has put the Chief and the entire Court into a situation where most Americans now believe that they are politicized in some way. So, I would hope that they would rule that it was “a political question,” which means that they’re not supposed to decide. There are no rules of recusal. There are guidelines that rules don’t apply in Supreme Court. There’s nothing that would, I tried to explain this to a reporter the other day, they couldn’t quite understand, there’s nothing that would actually require her to recuse. So, I’ll be interested to see what she has to say about that.
Judy Woodruff: (28:50)
I was just going to turn to Saikrishna Prakash at the University of Virginia. What do you see in her either statements or what she’s written that give you any clue about what she might do under those circumstances?
Saikrishna Prakash: (29:05)
Well, first, Judy, I hope there is no court case after this selection. I hope the outcome is clear. But if it goes to court and it ends up in Supreme Court, I think she has a general methodology of originalism and textualism. And I think those are neutral methodologies that don’t necessarily lead to outcomes that may favor or disfavor the president. Originalist judges have voted for this president, originalist judges voted against this president. So, I don’t expect that that methodology will lead to a conclusion that Trump will necessarily like. And I’ll endorse what Professor Nourse said, I don’t think that she’ll be recusing herself. It’s a little odd that Democratic senators who aren’t going to vote for her anyway want her to recuse.
Judy Woodruff: (29:52)
I’m asking all this, of course, because President Trump himself said several weeks ago, around the time that he nominated her, he drew a connection between wanting to fill that seat and what he suggested might be the Court having to decide on whether he’s reelected or not.
Judy Woodruff: (30:11)
I think our Lisa Desjardins is in a place where she can … She’s not yet in a place where she can talk to us. Let me come to you, John Yang, who’s been following this hearing.
Judy Woodruff: (30:23)
John, you’ve been watching these senators and anticipating the arguments they might make. How do you think this lays out what we’re going to see over the next two days?
John Yang: (30:37)
Well, I think that what Marcia and the others have said, the Democrats have made a calculation that they’re going to go after and underscore the possible effects and outcomes of a Justice Barrett, perhaps a vote on the ACA when it comes before the court a week after election day. And the one reason why I think that has become such a focus of both Republicans and Democrats is because the attack on law in this particular case is a textual one. It can be seen as having to do with the single word in the bill, “shall,” what does that mean? And I think that gives opponents of the ACA some hope that she would vote to strike it down. We don’t know that. Her writings have been about previous cases, which rested on different things.
John Yang: (31:39)
I think that also you’re hearing the preemptive strike by the Republicans on her religion, that goes back to her confirmation hearing for the circuit court, for the appeals court when Dianne Feinstein, the ranking Democrat, excuse me, said that the dogma was strong within her. That I think a lot of Democrats now see as a, perhaps an unfortunate rewarding, or if not a full mistake. And that allows the Republicans to try to paint the Democrats as being anti-religious, as anti-Catholic, anti-faith. But I also think that we’re not going to hear … We will hear later on a brief opening statement from Judge Barrett herself. She’s not going to give us much indication on positions, on law that she has not already written on as a judge. We’ll go back to, I think we heard Senator Grassley quote Justice Ginsburg in her confirmation hearing saying, “No forecast, no hints.” Because it would be disrespectful to the judicial process.
Judy Woodruff: (32:51)
And I want to come back, John, and maybe I will throw this quickly to Marcia, a question about what … Remind us exactly Marcia, what it was that Judge Barrett has said, has written about Chief Justice Roberts and his ruling on the Affordable Care Act, interpreting it as a part of the requirement that there be a fine, if you will, that it’d be connected or be interpreted as attacks. Why that matters? Why Democrats are seizing on her comments on that?
Marcia Coyle: (33:32)
Well, as you recall, in fact, as many of us recall, the Chief Justice was the critical vote in upholding the obligation to purchase health insurance under the Affordable Care Act. Because he said it was constitutional because there was a tax penalty, and he viewed it as constitutional under the constitutions under Congress’ power to tax and spend.
Marcia Coyle: (34:01)
Now in 2017, Congress eliminated the penalty. And so without the penalty, the Republican led charged against the Act, and the new term here is that it is no longer constitutional because the basis for upholding it is gone.
Marcia Coyle: (34:21)
Judge Barrett wrote in a law review article that in 2012, when Chief Justice Roberts upheld it as a tax, a constitutional tax, that he pushed the reading, that he pushed the Affordable Care Act beyond, and these are her words I believe, “it’s plausible meaning.” And that is what has concerned the Democrats, that she did look at the text and the constitution in 2012 and appears she would have come to a different result in that case. And so, their concern is that she would, once again [inaudible 00:35:03]-
Marcia Coyle: (35:03)
Is that she would, once again, seeing what was done textually by the Congress, on eliminating the tax penalty, that it will again be unconstitutional. But I have to tell you, Judy, that there is a serious bi-partisan agreement that the arguments against the Affordable Care Act in the Supreme Court now, are almost frivolous. They don’t have much grounding in law. The real issue may be if the court does find that the mandate is no longer constitutional because of what Congress did, the court will face a second question. And that is whether they can and whether the Justices under a doctrine [inaudible 00:35:53] on its severability, can cut out the unconstitutional provision, and still maintain the rest of the Affordable Care Act.
Marcia Coyle: (36:01)
So there really two issues that may face Judge Barrett if she becomes a Justice and the rest of the court, when it comes to the Affordable Care Act. But yes, you’re absolutely right. Is what she wrote in that, I think it was a 2013 law review article that has given Democrats a lot of concern about what she will do with the Affordable Care Act.
Judy Woodruff: (36:21)
And I’m asking because, Marsha Coyle, because it has come up in the comments of one Democrat, I would say almost every Democrat has raised the Affordable Care Act in his or her, excuse me, in his or her comments. Excuse me. Our Lisa Desjardins is now at a place where she can talk to us outside the courtroom. So Lisa, unusual scene with not only the Senator’s distance, but the audience distanced, very few reporters allowed in the room. Give us a sense of what it felt like in the room with the Justice, her family behind her and the whole picture.
Lisa Desjardins: (37:02)
I want you to imagine a large gymnasium, which is probably what this looks like on television. But in that room you get a sense of the vastness of the building and the chamber that you’re in. And I’ve been in that room many times for hearings, where we were packed more than 150 reporters at some times. Today there were twelve reporters here, seven still photographers. Each Senator could have only one staffer with them. Many of them opted to have no staffers. In general, Judy, it was good to see that nearly everyone remained masked as they’ve been requested to do, the exception to that was the chairman of the committee himself, Lindsey Graham, who rarely wore a mask.
Lisa Desjardins: (37:36)
He did put one on one time. That was when Senator Mike Lee came to speak with him. And of course, as our viewers know, Senator Lee tested positive for the Coronavirus 10 days ago. He said, he’s been cleared by the office of the physician here at the Capitol to attend this hearing.
Lisa Desjardins: (37:52)
He says, he is not at all someone who can contribute or pass around the virus. He’s not contagious, but he spoke without a mask in that hearing, his neighbor next to him, Senator John Cornyn, did not wear a mask when Senator Lee was speaking without one. So you really see these politics of masking happening at this moment. One other note, Mark Meadows, the President’s Chief of Staff, is here along with White House counsel, Pat Cipollone. Mark Meadows came to speak with the press just a few minutes ago, came up to the microphones here at the Capitol. The Press Corps unanimously has decided we are asking lawmakers to remain masked when they speak with us. Mark Meadows was asked to keep his mask on. He said he didn’t feel that was appropriate. He thought he was far enough away. The Press Corps said, no, we insist that you wear your mask. And he instead decided to move on and he said he would not speak to reporters if he had to wear a mask.
Lisa Desjardins: (38:42)
So this is the atmosphere we’re in right now. It’s unusual. All that aside Judy, I will say with the exception of the Coronavirus crisis hanging over us, which is very significant and you feel it in the room, this was actually a less tense room than I recall from the early Kavanaugh hearings. It was more serious. I think that Democrats, as your panel may have been suggesting, are resigned to where the votes are on this. And that led to a more substantive, less combative discussion than I’ve seen. There are protestors here. The only ones I’ve seen are in favor of Amy Coney Barrett, actually joyous supporters in favor of her, largely women’s pink signs in favor of Amy Coney Barrett, outside chanting for her. I have yet to see opposing protestors, though Capitol police tell me they are prepared and they do expect some.
Judy Woodruff: (39:29)
Lisa, there was a report earlier about arrests outside the building or outside the hearing room. Do we know anything about that?
Lisa Desjardins: (39:37)
I’m afraid I don’t. That shows you what kind of tunnel vision I have in the room.
Judy Woodruff: (39:40)
No, we know your movements are very restricted, but at least I do want to come back to something. And that is Amy Coney Barrett herself was wearing a mask, as was every member of her family. At the White House announcement event, over two weeks ago, she nor her family members were wearing a mask, nor was the President. And of course that’s now been identified including by Dr. Tony Fauci as a super spreader event. It’s interesting that she is wearing a mask at this indoor event and it will be interesting to see if that continues throughout the hearing.
Lisa Desjardins: (40:15)
That’s right. She and every member, not only of her family, but of her team, the six White House staffers, including the Chief of Staff, Mark Meadows, who were with her, were all wearing masks. And it could be argued that she was maybe the most isolated of anyone in the room. She was the most distant from anyone else. And yet, clearly she knew she would be on camera for this. And she decided to wear a mask throughout.
Judy Woodruff: (40:36)
I want to turn, come back to you Lisa, in a moment, but I’d like to turn now to Yamiche Alcindor, our White House correspondent. Yamiche, so much is riding on this for the President, for the White House. As Lisa just mentioned, Chief of Staff Meadows is there at the hearing. How is the White House watching these hearings? How much do they see it connected to the President’s reelection prospects?
Yamiche Alcindor: (41:04)
Well, the White House and President Trump are watching these hearings very, very closely. As Lisa said, you have the White House Chief of Staff going there in person to make sure that he is and that the public understands that this is the White House pushing for this nomination to go through. The President feels as though Judge Barrett is really an embodiment of conservative goals that they’ve been trying for decades to get realized. The President has said over and over again, that he sees Judge Barrett as connected to his legacy. He sees this as a way for him to, in some ways, reach out to Republicans, especially evangelical white Republicans to say, I am still the President that will get you the things that you want as a conservative and as an evangelical voter.
Yamiche Alcindor: (41:46)
The President has of course had so many different struggles in 2020. His response to the coronavirus has been a real issue for him. He’s downplayed the virus a number of times, admitted to that. But when you talk to voters who don’t like the President’s style, don’t like the brashness, don’t like the scandals, don’t like all sorts of other things that the President does, doesn’t like the tweets, they go back to the Supreme Court and the promise that the President made to voters, which was that I will pack the court with Supreme Court nominees that are made in conservative values and have conservative values. And that’s what the President has done. His third nomination we see here.
Yamiche Alcindor: (42:23)
We also think that there was something really interesting going on in the hearings. And that is that of course, as you mentioned, Democrats were talking a lot about healthcare, a lot about specific policies, abortion, a lot about all sorts of other things that could happen if they see Judge Barrett going on the court and not having the same ideas as them. And you saw Republicans really want to talk about constitutionality, saying that they’re obligated to have this strategy, that they’re obligated to confirm this nominee. And they didn’t really talk that much about policies, but President Trump has made it clear over and over again that he wanted a Justice in the Supreme Court that would overturn Roe V. Wade. He said it in 2016, he said, if I get elected, I will automatically move forward with trying to make sure that Roe V. Wade is overturned. He also said that every single Justice that he put on the court, that they would be in favor of overturning Roe V. Wade.
Yamiche Alcindor: (43:13)
He also talked about the Affordable Care Act and saying that he wants that overturned. He wants it repealed. The Trump administration has not come up with their own healthcare plan, but they’ve made it very clear that they want to do away with President Obama’s healthcare plan. And lastly, as you noted, there’s an election coming up and the President has been crystal clear just last month saying, I want someone who is on the Supreme Court, who will see me and see me as the rightful person to move forward because the President has said, without evidence, the Democrats are rigging the 2020 election. So we can also see the President making clear that he believes not only does his reelection hinge on this idea that he can point to Judge Barrett and say, this is a goal that I got, he also thinks that if there is some sort of contested election that Judge Barrett could be the vote that would allow him to serve another four years.
Judy Woodruff: (43:57)
Exactly, this nomination, more than any other because of the proximity to the election, brings us back time and again, to what it could mean for this President, what it could mean for the policies that he espouses. I do want to just quickly go back to our two analysts, guest Victoria Nourse and Saikrishna Prakash on what’s at stake here. And just quickly to you Victoria Nourse, what is at stake here in terms of the court moving from five to four conservative majority, to potentially what looks like will be a six to three conservative majority for a long time to come?
Victoria Nourse: (44:40)
Well, it’s decades, my children and my grandchildren. So that’s why the Senators are talking so much about so-called policy on the democratic side, because the court has taken a position where it not only can overturn statutes because they’re unconstitutional, but they can reread them in a way that they don’t work. So they’ve taken on a lot more power and this will solidify that power and that power in difficult cases often comes down on the side of where your political party is. It’s not because a Justice tried to do that. It’s just that there are two different answers, originalism isn’t neutral.
Victoria Nourse: (45:23)
I think most people don’t think we should go back to 1787 for dentistry. So I wouldn’t go back there for the constitution either. And textualism isn’t either because you can pick one word, as Marcia said, and suddenly the law that’s 900 pages, has gone. So what’s really at stake is a long, long tradition. Justice Scalia created something entirely new. It’s not traditional. And that, this new tradition, this invented tradition is going to determine where my daughter and granddaughter and grandson how they will live. And these are by unelected persons. That’s why the judiciary committee is focusing so much on policy because the court does determine that.
Judy Woodruff: (46:05)
And Professor Saikrishna Prakash, what about from a conservative perspective? What difference could it make for this court to go from five to four, to six to three, with a conservative majority?
Saikrishna Prakash: (46:16)
Judy, I kind of disagree with professor Nourse. I think the way to think about this is as a marginal change that can be undone by future Presidents who will be appointing their own Justices. If President, if Senator Biden, maybe President Biden wins, he’ll be appointing Justices I think that adopt his sort of traditional philosophy. So I don’t think this is going to be a generational change because as we know, there are many other old Justices on the Supreme Court and unfortunately everyone’s time comes sooner or later. So I don’t view this as generational, but of course every Supreme Court fight in the last several decades has been a knock-down drag-out fight because people always perceive it to be the last domino to fall.
Judy Woodruff: (46:59)
And you mentioned if Joe Biden is elected, but of course if President Trump is reelected, there would be a Republican in the White House for another four years.
Saikrishna Prakash: (47:08)
Of course, no, I can’t, I’m not predicting who’s going to win.
Judy Woodruff: (47:12)
Victoria Nourse, What about that? I mean, why couldn’t it be seen as just, this is another appointment and in a couple of years or less, there could be another change.
Victoria Nourse: (47:21)
Well, because Justice Scalia was not exactly a shrinking flower. We know what he has already ruled on and it would change lots of things in Americans’ lives. One measure of this is my colleague over at the main campus on Georgetown has come up with his ideological scores, which are in the hard cases, and the easy cases she’ll rule with the other Justices, I’m sure. But in the hard cases, the contested ones, he’s found that a six to three shift would in fact, turn the court ideologically back to approximately the 1950s. And so I do think this is quite significant. I think that on a variety of issues, this is why she’s presented in a particular way where everyone’s talking about the gender issue. I don’t think they spent as much time on male nominees and their families. And she’s viewed as an icon for having this amazing career and amazing family.
Victoria Nourse: (48:25)
But that’s what is the image is reflecting a deeper reality. If Michael Bailey, my colleague is correct about ideology and he doesn’t believe the court is always ideologically, he thinks it’s not ideological for most of the cases. I think that’s what we all agree. We lawyers, we revere the court. The problem is that the court will get into trouble if it’s confused about its mission and its mission is to support the rest of the government, not to make radical changes in government policy.
Victoria Nourse: (48:58)
Unfortunately, I don’t think that that’s what this philosophy does. I think this philosophy is something of a smoke screen, as one of the Senators said. It sounds really anidine and very bland, but in fact, it’s already been shown in the healthcare acts and both of these statutory cases, they’re not constitutional cases, to be based on very thin reads. And so part of the problem is that you can use this philosophy to make hash of almost any statute if you want. And I know that Judge Barrett knows that because I’ve debated her about this. She believes it. But I think the evidence shows that it doesn’t quite work out that way.
Judy Woodruff: (49:43)
And Saikrishna Prakash, why is that wrong? Why is that analysis that it could take us back to a court from the 1950s not correct?
Saikrishna Prakash: (49:52)
I mean, because I think Judy, one, I think the court already has a conservative majority, but what we’ve seen is that the conservative majority wedded to a methodology comes to conclusions that aren’t predictably conservative. I think of the [inaudible 00:50:05] case, that was a textualist opinion signed onto by liberal Justices as well. That was not, did not lead to the conservative outcome or at least a conservative outcome of a certain sort. And then I think more generally, there are going to be other nominations. There is no end to history and there is no end to these nomination fights. And so I don’t think that this [inaudible 00:50:28] a one or two generational change in the Supreme Court. As Barack Obama said, elections have consequences. President Trump won, so he’s nominating people that he thinks would be best suited for the court. And if Senator Biden wins, he will do the exact same thing. And I can guarantee you, they won’t be like Judge Barrett.
Judy Woodruff: (50:45)
Marsha Coyle, I want you to weigh in on this as you watch the court so closely.
Marcia Coyle: (50:53)
Okay. When I think of the six, three conservative majority, I also think about Chief Justice Roberts. Right now, well, in a five, four majority, Roberts was the median Justice, not the swing Justice, but Justice who was able to control or had the ability to control how far and how quickly the court could move the law to the right, for the most part. And I think with a six, three majority, his ability is diluted. If he is in the majority, he still retains of the power to assign opinions. So there’s a certain amount of control there. But I think overall what we saw last term, when he was able to form majorities with the left in order to reach opinions in some very hot issues involving not only President Trump, but also involving dreamers, and the LGBTQ employment discrimination case. That then he was very essential to that.
Marcia Coyle: (52:11)
I think with a six, three conservative majority, even though for the most part, he will be with the other conservatives, he will not be able to have his as much ability to control, as I said, how far and how quickly the court moves. As well as what he is known for, which is to have a very close eye on the institution’s reputation and integrity with the American people. It doesn’t mean he decides cases because he’s always worried about what the American people might think. It’s just that he takes a step back and while weighing everything, he also has to weigh the continuing credibility of the Supreme Court with the American people, because that is essential to the American people’s belief in the rule of law. And I think a six, three majority really does have an impact on him.
Marcia Coyle: (53:07)
And then that raises the question of, well, is there going to be another median Justice? Who would that be? And I guess if you look at how the votes have gone in the last two terms or so, that the median Justice might be Brett Kavanaugh, and I don’t think that he would be the same kind of median Justice as Roberts from what I’ve seen thus far. But it’s still very early in Kavanaugh’s career on the Supreme Court to make any Judgements about him in that kind of a role. So I think a six, three conservative majority does have a real impact and there’s less of a need to try to bring on board in key cases, the three Justices on the left. And that would be unfortunate.
Judy Woodruff: (53:54)
All right, let’s go back to the United States Capitol to our Lisa Desjardins, who’s been in the hearing room and is watching all of this. Lisa, give us a sense of what to expect. I mean, is there an expectation that any of these Senators is going to change? There’s no question, all the Republicans are going to vote in favor of Judge Barrett. We assume all the Democrats are going to be opposed. Do you see any sense of minds changing as a result of these hearings over three days, four days?
Lisa Desjardins: (54:27)
I do not. And you heard Senator Klobuchar say as much in the hearing. Also interesting, one of the two Democrats who has spoken with Amy Coney Barrett, Senator Chris Coons of Delaware had a phone call with her last week. He spoke with me and other reporters after that phone call. And we asked, do you think there are, and he’s known as being bipartisan, talking to Republicans, are there any Republicans who may be on the fence here? He said, there are Republicans he’s speaking with who have questions about Judge Barrett, maybe some sort of doubts, but he said he doesn’t think that they are large enough doubts to change them to voting against her. I do think this next part of the hearing, although it will be the shorter part, we have maybe an hour and a half left today it looks like, will be interesting because there are a lot of political stakes involved.
Lisa Desjardins: (55:13)
We have seven Senators remaining to speak. In that group are too vulnerable Republican Senators, or I’m sorry, one vulnerable Republican Senator, Senator Joni Ernst, you heard from Senator Thom Tillis in the first half. And also the Vice Presidential nominee for the democratic party, Senator Kamala Harris. So it is going to be very important to me, to see how Harris, how widely does she speak? How much does she speak to the democratic base? And the same thing for Senator Ernst. She has been someone who she needs Trump voters in her States to show up for her, but she also has to have some kind of wide appeal. How does she handle this nomination? I’m going to be very interested to see. And of course we’ll hear from Judge Barrett herself as well. There will be three people introducing her to Senators and one of the former Deans of the Notre Dame law school as well.
Judy Woodruff: (56:02)
It’s so interesting and important to keep in mind what the political pressures and otherwise are on these Senators as they consider the nomination, as they think about what they’re going to say. Lisa refresh our memory on this, how many of the democratic Senators either on the committee or overall, have agreed to meet with Judge Barrett?
Lisa Desjardins: (56:24)
Well, it depends on how you phrase that question. So far, two of them have spoken with her, Joe Manchin of West Virginia has met with her in person. And as I said, Senator Coons spoke with her on the phone. I know that Senator Booker has said, if she wanted to meet, that he wants to talk to her. I don’t know if that’s an official meeting or quite what that means, but those are the only ones that I know have been very open about saying they would like to speak with her. I also, I don’t know if there’s hard nos from the rest.
Judy Woodruff: (56:51)
And as we watch Judge Barrett come back into the hearing room, followed by members of her family, we’re waiting for the Chair of the Committee. And I can’t see if Lindsey Graham is in his seat just yet. Let me turn quickly back to John Yang. John, as you watch the Senators weigh what they’re going to do about this nomination, does it strike you how many of them pre-announced what their vote was going to be?
John Yang: (57:20)
Well, I think you heard a Chairman Graham say it right in his opening statement. This is not an exercise in trying to persuade one another. He said he fully expects all the Democrats to vote against, all the Republicans vote in favor. And I see Senator Hirono is now beginning her questioning, or statement.
Judy Woodruff: (57:37)
Let’s go directly to the hearing room. This is Senator Mazie Hirono of Hawaii. [crosstalk 00:57:40]
Senator Mazie Hirono: (57:40)
The White House has become a COVID-19 hotspot driven by the President’s ongoing denial of how serious this pandemic is. Not even contracting the virus and being hospitalized seems to have shaken him back to reality. In normal times, the Senate would be focusing our attention on passing legislation to help the millions of Americans suffering during this pandemic. But these are not normal times. Instead, Senate Republicans are rushing to put a nominee onto the Supreme Court to be the deciding vote to take healthcare away from millions of people. President Trump has been very clear about what he’s doing. He’s repeatedly promised to appoint Supreme Court Justices who will strike down the ACA. And by nominating Judge Barrett, the President is keeping his promise.
Senator Mazie Hirono: (58:37)
In her speech at the White House COVID super spreader event two weeks ago, Judge Barrett aligned herself with her mentor, the late Justice Antonin Scalia, who twice voted to strike down the ACA. To help the President keep his promise, our Republican colleagues are rushing to confirm Judge Barrett in a hypocritical illegitimate process, mere weeks before the election. They want Judge Barrett’s seated just in time to hear the Republican lawsuit challenging the ACA a week after the election. For Americans dealing with this pandemic, it must seem outrageous that Donald Trump and Senate Republicans are determined to take away their healthcare and are just as determined to do nothing to help Americans with a new COVID relief bill. And they’re right. It is outrageous, but it’s not surprising.
Senator Mazie Hirono: (59:34)
Republicans have made it clear for the past decade that repealing the Affordable Care Act is at the top of their hit list. We know this because a mere two weeks after assuming control of the House in 2011, Republicans voted to repeal the ACA for the first time. And over the next six years, Republican took at least 70 votes, 70 votes in Congress to eliminate provisions of the ACA or to repeal it altogether. These repeal efforts culminated in the early morning hours of July 28, 2017, when our late colleague, Senator John McCain gave his dramatic thumbs down and saved healthcare for millions by one vote, his vote. Faced with their 70 failures to get rid of the ACA in Congress, Republicans have taken to the courts. Right now, the Trump administration and 18 Republican state attorneys general, including those from Texas, South Carolina, and Missouri are at the Supreme Court right now, trying to strike down the ACA.
Senator Mazie Hirono: (01:00:49)
All arguments in the case are scheduled for November 10th, a mere week after election day. This latest legal effort has been turbo charged because of death of our champion, Justice Ruth Bader Ginsburg only three weeks ago. Her death has changed everything for Donald Trump and Senate Republicans. They are confident that victory at the Supreme Court is now within their grasp if the Senate confirms Judge Barrett through this hypocritical illegitimate process. The consequences of Judge Barrett’s confirmation would be devastating for millions of Americans who would lose their healthcare during this pandemic. Even in normal times, without the threat of a pandemic, no one in our country should have to confront a major illness, worried that it might bankrupt their family, but we all know these are not normal times. Healthcare is the number one concern for so many.
Judy Woodruff: (01:01:51)
Quickly interrupting Senator Hirono as the committee is now back from its lunch break and opening statements have resumed. We are going to start preparing for our own NewsHour program, but stay right where you are, our uninterrupted coverage will continue on PBS stations and online on our website, on YouTube, and on other social media channels throughout the conclusion of today’s hearing. I’m Judy Woodruff. Thank you for joining us. Please stay with us.
Senator Mazie Hirono: (01:02:17)
Thankfully, the ACA enabled her to get healthcare. She used that coverage to get a checkup and a mammogram, which found her breast cancer. With her health insurance, she was able to get a mastectomy and has been cancer-free since. Kimberly credits the ACA for saving her life. She said, quote, “If it wasn’t for the Affordable Care Act, I probably wouldn’t have had that mammogram. I was diagnosed early. It scares me to think if I didn’t have insurance, how far advanced with the cancer have grown.” Kimberly’s story is not unique. In the years of all the battles of eliminating the ACA, we’ve heard from hundreds and thousands of constituents across the country, sharing their healthcare stories.
Senator Mazie Hirono: (01:03:05)
Dean Odo and his daughter, Jordan, are from my home state of Hawaii. Jordan, who is an elementary school teacher at Ewa Beach Elementary School, has PNH, a very rare blood condition. To treat this condition, she gets infusions of a special medicine that costs around 500,000 per year without insurance. Dean told me that quote, “without this medicine, she will die.” Dean and Jordan live in fear that Republicans will strike down the ACA, which would allow her insurance company to put lifetime caps on her benefits. And she would be left without coverage for her life saving medication. Dean wrote to me to share how quote “Extremely terrified” he is about his daughter losing access to adequate healthcare under the ACA. He’s asked me to fight for her, and that’s what I’m doing today.
Senator Mazie Hirono: (01:04:06)
Healthcare is personal to Kimberly, Dean, Jordan, and it’s personal to me too, because I know that having health insurance and access to health care saved my life. On the day when the Senate confirmed Neil Gorsuch to the Supreme Court, I got a routine chest x-ray before a scheduled eye surgery, a shadow on that x-ray and a later scan led to my diagnosis of stage four kidney cancer and gave me time to receive treatment. My diagnosis came as a total shock and I’m grateful it came when there was still time. I still have cancer, but I don’t need any treatment right now. I receive regular scans so that I will know in time, if treatment becomes necessary again. I’m grateful for the care I’ve received and continue to receive from my doctors. The cost of my treatment, which included a surgery to remove a kidney, a second surgery, to remove part of a rib replaced with a seven inch titanium plate, almost two years of cutting edge immunotherapy and regular scans has been enormous.
Senator Mazie Hirono: (01:05:23)
It would bankrupt almost every family in this country if they didn’t have health insurance. I’m not special or unique, serious illness can hit anyone unexpectedly, it did for me. And when it does, no one should have to worry about whether they can afford care that might save their life. The Affordable Care Act provided this peace of mind for so many people over the years who found themselves in positions similar to mine. Their lives and their health are what’s at stake. Their lives are what’s at stake with this nomination. And at moments like this, where the healthcare of millions is on the line, I think back to the care and concern so many of you showed me when I was diagnosed with cancer three and a half years ago. So many of you, including many of my Republican colleagues on this committee wrote heartfelt notes, wishing me well, and letting me know you were thinking of me.
Senator Mazie Hirono: (01:06:27)
And to this day, when the Chairman of this Committee and I find ourselves away from the cameras or sharing an elevator, he never hesitates to ask me about my health. About, he says, how are you doing? Mr. Chairman, you and I have had our pointed disagreements over the years, particular during our time together on this committee, but your concern means a lot to me. Moments when we recognize our shared humanity are rare in Congress these days, but this can and should be one of those moments. This can be a moment, Mr. Chairman for you and your Republican colleagues to show the American people terrified about losing their healthcare, the same care and compassion you show me and continue to show me when I was diagnosed with cancer. Instead of rushing to jam another ideologically driven nominee onto the Supreme Court in the middle of an election when over 9 million Americans have voted, Mr. Chairman, let’s end this hypocritical illegitimate hearing, return to the urgent work we have before us to help those suffering during this pandemic. Thank you, Mr. Chairman.
Chairman Lindsey Graham: (01:07:56)
Thank you, Senator Hirono. I think it’s not just me, I think everybody on this committee and everybody that knows you, knows you’re passionate about your causes. We have a lot of political differences, but all of us are very encouraged to hear that you’re doing well. And we’ll keep praying for you. You’re an asset to the Senate.
Senator Mazie Hirono: (01:08:16)
I appreciate that. Thank you. Do the right thing.
Chairman Lindsey Graham: (01:08:20)
Okay. Senator Ernst.
Senator Mazie Hirono: (01:08:22)
Chairman Lindsey Graham: (01:08:24)
Aloha. Senator Ernst.
Senator Joni Ernst: (01:08:29)
Thank you, Mr. Chair, and Judge Barrett, thank you so much for being in front of us today. Welcome to you, and of course I am so glad that you have had your family join you today as well. Only a hundred years ago, women in this country were given the right to vote. And today we consider adding another woman to the highest court in the land. And I can’t help, but be so proud of all of the, every one of our women have accomplished in this incredible nation.
Senator Joni Ernst: (01:09:04)
This is the first time that I’ve been a member of the judiciary committee during a Supreme Court nomination process. And as you probably know, like most Americans, I’m not a lawyer. I bring a slightly different perspective onto this committee, but one thing is very important to me and it’s something that matters to Iowans, whether they are lawyers or not. I firmly believe in the role of our Supreme Court. It is the defender of our constitution. At the end of the day, that’s my test for a Supreme Court Justice. Will you defend the constitution? It frustrates me and it frustrates my fellow Iowans that the Supreme Court has become a super legislature for a Congress that frankly won’t come together, discuss these.
Senator Joni Ernst: (01:10:03)
… for a Congress that frankly won’t come together discuss these tough issues use and do its job. What I hear from my colleagues on the left is about judicial activism and what they want to see in their nominees, which is that super legislature. They are projecting that upon you, Judge Barrett. That’s what they are projecting as they talk about what cases may or may not come in front of the Supreme Court.
Senator Joni Ernst: (01:10:38)
Matter of fact, I think it was just the other day that Vice President Joe Biden told the American people they don’t deserve to know whether he is going to pack the court, they don’t deserve to know who his judicial nominees would be. I think we do need to know, again, because it’s what the left is projecting on you today is what they want to see in their nominees.
Senator Joni Ernst: (01:11:08)
But that’s not what our founders intended the court to be. I hope that this is hearing will be an open, fair conversation about how Judge Barrett would be as Justice Barrett. I am concerned, however, that not everyone involved in this hearing shares that goal. We’ve already seen hints in that over the past few weeks immediately attacking your faith and your precious family. Instead of entering into this nomination process with an open mind and a desire to understand this woman who has been nominated for the highest court in the land, the focus is on a plan or a strategy, a series of tactics to undermine, coerce, and confuse the American people, a plan, Judge Barrett, to undermine you as a person, undermine your family, and undermine what you hold dear.
Senator Joni Ernst: (01:12:12)
Women all over the world are painfully familiar with this strategy. We are all too often perceived and judged based on who someone else needs or wants us to be, not on who we actually are. I cannot speak for those that would attempt to undermine your nomination, but as a fellow woman, a fellow mom, a fellow Midwesterner, I see you for who you are, and I’m glad the American people have the opportunity to get to know Amy Coney Barrett.
Senator Joni Ernst: (01:12:52)
This week will be an opportunity to dig into your background further and understand more about your judicial philosophy, but what your political opponents want to paint you as is a TV or cartoon version of a religious radical, a so-called handmade that feeds into all of the ridiculous stereotypes they have set out to lambast people of faith in America, and that’s wrong. It might be less comical if this was the first time the left has trotted out this partisan playbook. Your political opponents have made these types of religious attacks on nearly every Supreme Court candidate nominated by a Republican president in the modern era.
Senator Joni Ernst: (01:13:46)
Every time, like clockwork, they say they really mean at this time, “This nominee, this woman in front of us, she is the absolute worst.” I’m struck by the irony of how demeaning to women their accusations really are, that you, a working mother of seven with a strong record of professional and academic accomplishment, couldn’t possibly respect the goals and desires of today’s women, that you, as a practicing Catholic with a detailed record of service, lack compassion. I know you to be compassionate. Your record on the Seventh Circuit says that you are, and more importantly, it shows that your demonstrated commitment is to defending the constitution.
Senator Joni Ernst: (01:14:44)
The great freedom of being an American woman is that we can decide how to build our lives, whom to marry, what kind of person we are, and where we want to go. I served in the army, something not exactly popular at various points in America’s history. We don’t have to fit the narrow definition of womanhood. We create our own path.
Senator Joni Ernst: (01:15:13)
Justice Ginsburg was one such woman, and I would like to pay tribute to her for what she did to pave the way for women of today. It’s really quite simple what your opponents are doing. They are attacking you as a mom and a woman of faith because they cannot attack your qualifications. Every year, I travel to every single one of Iowa’s 99 counties and talk to men and women from all walks of life. Whether they are farmers or nurses or small business owners, they want a government that is accountable to them. When Congress makes a law that oversteps the constitution, the ripples can be felt, whether it’s on farms and Montgomery County where I’m from and the manufacturing facilities of Dubuque. It can be felt in the church services of Sioux City and the community meetings in Waterloo.
Senator Joni Ernst: (01:16:09)
The Supreme Court’s only job is to rule on the cases before it and defend the constitution. To do that well, a justice needs to be thoughtful, restrained and wise. Judge Barrett, so far I have seen all of those things in you. I am so glad that we have you in front of us. I look forward to learning more about you. I want to thank you and your family for being in this nomination today, and certainly, this, folks, is what a mom can do. Thank you, Judge Barrett, very much. Thank you, Mr. Chair.
Mr. Chairman: (01:16:53)
Senator Booker: (01:16:56)
Thank you, Mr. Chairman. Behind me, Merritt Bowman is a 49-year-old father of twin boys, as you could see, and a football coach and paraprofessional at Deptford High School in New Jersey. For years, Merritt put off going to the doctor because he was, like many Americans, afraid he could not afford it, but when the Affordable Care Act was passed, he finally got the coverage he could afford. Four years ago, after not feeling well, Merritt made the doctor’s appointment and was diagnosed with type II diabetes, a disease that affects over 10% of Americans and disproportionately impacts black Americans like Merritt, who are 60% more likely to be diagnosed with diabetes and twice as likely to die from it.
Senator Booker: (01:17:43)
Today, Merritt takes insulin and other medications, and his condition has thankfully improved. Merritt said, and I quote, “Obamacare made it so I was not afraid of the cost of going to the doctor. If I didn’t have insurance and didn’t get diagnosed, who knows where I would be right now?” But Merritt is worried about what will happen if the Affordable Care Act gets overturned. He said, and I quote, “Now I have a preexisting condition. My insurance covers my medications, my equipment to monitor my diabetes. If that’s taken away from me, what’s going to happen? I can’t afford those on my own.”
Senator Booker: (01:18:23)
Michele Lewris from Palisades Park, New Jersey lost her husband John last year when he passed away suddenly at the age of 58. Michele relied on health insurance through John’s job, but when he died, their insurance went away. She was given the option to continue his plan, but she couldn’t afford the cost of $800 a month. Michele signed up for coverage on the Insurance Marketplace where she qualified for a subsidy that made it more affordable.
Senator Booker: (01:18:55)
Today, she’s insured, and she can manage her diabetes, heart disease, and an auto-immune disease because of her coverage. Like Merritt, Michele also relies on insulin and other prescription medications. If the ACA was overturned, Michele said, quote, “I could lose my house. If I didn’t have affordable healthcare, I would have to sell my home. I like where I live. I don’t want to lose my home.”
Senator Booker: (01:19:25)
People like Merritt and Michele are understandably scared right now. President Trump has told America he would end the ACA. He promised explicitly that he would only nominate judges that would do the right thing and eliminate the Affordable Care Act. People like Merritt and Michele know what a future without the ACA looks like. It looks like 130 million Americans with preexisting conditions, from cancer survivors to people with disabilities being charged more or denied coverage completely. It looks like 20 million Americans losing their access to potentially life-saving care in the middle of a pandemic. It’s already killed over 214,000 Americans in New Jersey. We’ve lost over 16,000 people to COVID-19. 595,000 people would lose their coverage without the ACA.
Senator Booker: (01:20:28)
For millions of Americans, a future without the ACA looks like being forced to sell your house if you can’t afford your healthcare. It looks like not having access to a doctor when you’re sick. It looks like having to choose between paying for groceries and paying for medicine. People are scared right now for another reason because they know what a future without the protections of Roe v. Wade looks like because President Trump has explicitly stated that he would only put up Supreme Court nominees that would overturn Roe v. Wade. He said it clearly. We should believe him. That, without Roe v. Wade, our country looks like people being denied the ability to make decisions about their own bodies, not just while they’re pregnant, but being stripped of the right to plan for their futures.
Senator Booker: (01:21:19)
It looks like women of color, low-income women, and women living in rural areas who can’t just pack up and leave if abortion is restricted or criminalized where they live. It looks like them being left with no options. It looks like state laws proliferating throughout our country that seek to control and criminalize women. It looks like the government interfering with women making the most personal medical decisions. It looks like a country in which states may write laws that could subject women who have miscarriages to investigations to ensure they didn’t have abortions.
Senator Booker: (01:22:03)
In America today, people are scared. You heard from my colleagues. We were getting calls to our office where people are afraid. More than 214,000 Americans who died, many of them isolated and alone, away from friends and families. Tens of millions of jobs have been lost. One in three American families with children aren’t getting enough food to eat. More than 100,000 small businesses have closed permanently. Lines at food banks in the wealthiest nation on the planet have stretched for miles.
Senator Booker: (01:22:41)
We could be, as the Senate, we should be, as the Senate, working in a bipartisan way to try to get this virus under control to get relief to people who are hurting, who are struggling, who are afraid to help people who are unemployed, to let doctors and nurses and hospital staffs putting their lives on the line right now in state after state where COVID is rising know that we have their backs in a pandemic. But instead of doing anything to help people who are struggling right now, we are here. We’re here.
Senator Booker: (01:23:20)
I’m so glad, I’m really glad that my colleagues who contracted COVID 19 at the Rose Garden superspreader event for Judge Barrett had access to the care that you and your families needed. That is right. This is a blessing. The problem is the people who will come through here today to wipe down the desks and empty the garbage, that will vacuum the floor, like people all over our country who are working today in factories, teaching children in schools, they don’t have direct line to the nation’s top health experts. They can’t show up to work sick, and they might not have space to distance themselves at home to protect their families.
Senator Booker: (01:24:07)
We literally stopped the Senate from functioning with the exception of this hearing. That’s why we’re here. We’re not just 22 days from an election. We’re in the middle of an ongoing election. When millions of people have already started voting because Donald Trump and most of my Senate Republican colleagues know the truth, they won’t be able to get away with this after the American people have spoken in this election.
Senator Booker: (01:24:38)
Donald Trump and my Senate Republican colleagues in this room today know that the American people don’t want the ACA overturned. Donald Trump and my Senate Republican colleagues know that the majority of Americans don’t want Roe v. Wade overturned, that the majority of Americans don’t want to see abortion criminalized in our states. But that is exactly why we are here today because Donald Trump and Senate Republicans know that the American people don’t want this, so they have to act now. They don’t trust the American people, which is so painful because that’s what they said. They said we should trust the American people and what the American people say under President Obama 269 days from an election. Then after that election, they tried time and time again to overturn the Affordable Care Act, but a handful of Republicans stopped them.
Senator Booker: (01:25:34)
You see, they tried in the Senate, they tried in the House, over 70 attempts to rip down the affordable care act, but now Donald Trump has [inaudible 01:25:41] he’s going to do it through the courts by making the nomination we see here today. That’s why we are here. The American people should know that that is what this is all about, rushing this nomination through to sit a Supreme Court Justice in time to hear a case before the Supreme Court that will end the Affordable Care Act.
Senator Booker: (01:26:02)
We’re here because in the middle of a deadly pandemic, in the middle of an ongoing election, Senate Republicans have found a nominee in Judge Barrett who they know will do what they couldn’t do, subvert the will of the American people and overturn the ACA and overturn Roe v. Wade. That’s what this is about. That’s why we’re here. It’s very simple. Senate Republicans know the American people don’t want this, but they don’t care because they have only one small window of opportunity to work the system, betray what the American people want, and so they’re desperately rushing to complete this process before America starts voting, but they don’t have to do this.
Senator Booker: (01:26:44)
If one of my colleagues will stand up on this committee, we can hold this over until after an election. If two of my colleagues on the Senate floor agree with their other two colleagues, Republicans, we can stop this; otherwise, this is a charade. When they say this is a normal judiciary committee hearing for a Supreme Court nomination, there’s nothing about this that’s normal. It’s not normal that Senate Republicans are rushing through a confirmation hearing, violating their own words, their own statements, betraying the trust of the American people and their colleagues and failing to take in this hearing even the most basic safety protections to protect people around them all to ensure the tens of million people, tens of billions of people will lose their health care when we’re seven months into one of the worst public health crises in the history of our country.
Senator Booker: (01:27:38)
It’s not normal. This is not normal, that millions of Americans like Michelle and Merritt are just scared of a deadly virus. They’re scared of their Americans who were sitting in this room right now. They’re scared that their government and their institutions will be manipulated by people who could not work through the democratic process to take away their healthcare and are trying an end-run to achieve that.
Senator Booker: (01:28:04)
Nothing about this today is normal. This is not normal. What is going on in America today in the midst of a deadly pandemic and an ongoing election, having a rushed Supreme Court nomination hearing is not normal, and we cannot normalize it. People are voting right now. The American people should decide. The American people should decide. The American people should decide. I will not be voting to confirm Judge Barrett’s nomination.
Mr. Chairman: (01:28:40)
Thank you, Senator Crapo.
Senator Booker: (01:28:41)
Mister… I would like to submit a letter for the record, if I may?
Mr. Chairman: (01:28:45)
Senator Booker: (01:28:46)
We should not be rushing, as I said, this process. My colleagues agree with me that we should be working to protect the health and safety of Americans across the country and taking the precautions, greater precautions in this workplace. I’d like to enter into the record a letter from Senators Leahy, Senator Harris, and myself that we sent to the Chairman last week asking that these hearings not proceed without proper testing measures, without all of us being tested and a COVID safety protocol being put into place.
Mr. Chairman: (01:29:15)
Thank you. Without objection. Senator Crapo.
Senator Crapo: (01:29:18)
Thank you, Mr. Chairman. Judge Barrett, welcome, and congratulations on the high honor of your nomination. I have some prepared remarks here, which I will give, but having sat through the speeches that I’ve heard already and listened to the attacks that have been made both on Republican members of the committee and on you, I think it’s important to just set the record straight on a few items before I then talk about why we are here, and that is you and your qualifications to serve as a justice.
Senator Crapo: (01:29:50)
What were the attacks? I’d say the first one is that we’re rushing too fast and that we are violating the rules and norms and precedents of the Senate and speeding into these proceedings. What are the facts? Well, I had my staff check while they were sitting here. This hearing is 16 days after Judge Barrett’s announced nomination. More than half of all Supreme Court hearings have been held within 16 days of the announcement of the nominee. This case is no different. A couple of examples: Justice Stevens, 10 days; Justice Rehnquist, 13 days; Justice Powell, 13 days; Justice Blackmun, 15 days; Justice Burger, 13 days. These proceedings are following right along in the same kind of process that has historically the process of the Senate.
Senator Crapo: (01:30:50)
Then the argument is made that, “Well, this is an election year, and the Republicans said back in 2016, that in an election year, they wouldn’t move forward with then President Obama’s nomination.” What are the facts? A vacancy has risen in a presidential election year 29 times. Every single one, and this is important to note, every single one of those 29 times, whoever was the sitting president made a nomination to replace the vacancy, to fill the vacancy. Every one of those 29 times. 19 of those 29 times, the parties of the president and the Senate majority were the same, and 17 of those 19 nominees were confirmed. By contrast, of the 10 times in which the Senate was controlled by the party opposite to the president, only one time that the Senate that was not of the party of the president proceed to fill that vacancy.
Senator Crapo: (01:32:03)
In fact, vacancies under a divided government, meaning a senate and a presidency from different parties, have not been filled for over 130 years, going back to 1888. Much like when the Senate exercised its constitutional right, fully consistent with precedent in 2016 not to fulfill the vacancy when there was divided government, the Senate is today exercising its duty to move forward with processing this nomination, just like the vast majority of senates in the past have done every time this has happened. It’s important to note that. Any claim that this process is unusual or that it violates the clear precedent of the Senate is simply false.
Senator Crapo: (01:32:57)
Then back to the attacks on the members of this committee on the Republican side, and frankly, against the president, it says that we are trying to engage in court-packing. Now, that’s a novel one because it’s actually the Senate following standard procedure with regard to a vacancy that is now being accused of being court-packing when my colleagues on the other side are actually proposing court-packing, that is to statutorily and with the signature of a president change the law so that they can add more members to the court. FDR tried this, and his effort was rejected. That effort should be rejected now, but let’s be clear about it, this is not court-packing. That, threatening to pass a law and change the court is court-packing.
Senator Crapo: (01:33:51)
So then what were the arguments that were actually leveled against Judge Barrett? Well, the standard arguments: She is going to overturn all protections for women. She is going to change all of the laws in the country that protect people’s healthcare, and everyone in this country who has a pre-existing condition or has any kind of a worry about getting support needs to worry that she’s going to be an activist justice and go in there and change the law.
Senator Crapo: (01:34:28)
She’s not, and we all know that. This is simply the tired worn out argument that is constantly made every time a Republican president nominates a candidate for the Supreme Court of the United States. It’s never been true, and it will not be true with Judge Barrett.
Senator Crapo: (01:34:55)
Then the attack is, “Well, the Republicans don’t care about people’s health. They won’t even try to get COVID relief out. We’re here in a hearing in the judiciary committee when we ought to be passing COVID relief legislation, and I’ve heard several of my colleagues basically say that Republicans are refusing to work on helping to address the COVID crisis.” This coming from colleagues who just a month or so ago voted unanimously to filibuster 5 to $600 billion COVID relief package in the Senate.
Senator Crapo: (01:35:29)
A COVID relief package. I asked my staff to get me a quick summary on it that put, as I indicated, somewhere between 5 and $600 billion into more small business loans, unemployment insurance, agriculture and farming assistance, postal service assistance, education assistance, both at the higher education levels and K through 12, healthcare assistance for pandemic preparation for a strategic stockpiles, for testing, for contact tracing, billions for vaccine and therapeutic and diagnostic development, and the list goes on. We were stopped from proceeding with this legislation by a filibuster of the who now accuse us of not wanting to try to do something. We stand ready if you’ll simply let us go to the legislation and pass it.
Senator Crapo: (01:36:25)
Now, Judge Barrett, let me talk about you. Judge, you have an exemplary academic record and legal credentials, and you are preeminently qualified to serve on our Supreme Court. Following your graduation from school, you clerked for both the U.S. Court of Appeals for the District of Columbia and the U.S. Supreme Court. At the Supreme Court, you clerked, as everyone knows for none other than the late Justice Antonin Scalia. Upon receiving your nomination to the Supreme Court, Judge Barrett reflected on her clerkship for Justice Scalia, setting his incalculable influence on her life. She also stated that his judicial philosophy is hers too and that a judge must apply the law as written.
Senator Crapo: (01:37:15)
That’s what we need in our next Supreme Court Justice, rather than the activist justice that you are being accused of being. Judges are not policymakers, and they must be resolute in setting aside policy views that they may hold. I know you know that. Should we not take judge Barrett at her word? As a judge, Supreme Court or otherwise, she must be dedicated to interpreting the law as written with an unparalleled commitment to our constitution. I’ve visited with her privately. I’ve reviewed her record. I have seen nothing that would indicate that she is not telling the truth when she says that is her view of how a judge should conduct herself.
Senator Crapo: (01:38:07)
I’ve met with a number of Supreme Court nominees in my service in the Senate, and throughout, I’ve continued to maintain an emphasis on following the law and upholding our Constitution, and that must be a central characteristic of the justices we select for this highly influential part of our government.
Senator Crapo: (01:38:26)
Judges have a great responsibility to carefully exercise their authority within the limits of the law. Our court system has the responsibility to preserve our constitutional rights, ensure a limited government, and provide speedy and fair justice. Following her clerkships, Judge Barrett spent time in private practice before beginning her tenure as a professor. Her academic scholarship and lengthy analysis of issues facing the federal courts make her uniquely well-qualified to serve on our nation’s highest court. In particular, Judge Barrett’s thoughtful exploration of the precedent and the Doctrine of Stare Decisis demonstrates that she’s both intellectual and deliberative in her understanding of the law. Moreover, it’s evident that she understands the role of a fair and proper judge.
Senator Crapo: (01:39:15)
In September 2017, Judge Amy Coney Barrett came before the Senate Judiciary Committee, this committee, after being nominated to the U.S. Circuit Court of Appeals for the Seventh Circuit. During that hearing, she repeatedly expressed her commitment to independent and unbiased decision-making. I was proud to support her confirmation to the Court of Appeals in both the committee and on the Senate floor. Judge Barrett’s remarkable resume shows she is a pioneer in the legal field. She will be the fifth woman and the first mother of school-aged children to serve on the Supreme Court. In many ways, she’s the ideal candidate to fill this current vacancy.
Senator Crapo: (01:39:55)
Mr. Chairman, I look forward to hearing more from the nominee about her experience and her judicial philosophy. The next few days will prove invaluable as we discuss with Judge Barrett at length the proper role of a judge in our legal system. I look forward to this hearing. Thank you, Mr. Chairman.
Mr. Chairman: (01:40:12)
Thank you. I believe, Senator Harris.
Senator Harris: (01:40:14)
Can you hear me?
Mr. Chairman: (01:40:14)
Senator Harris: (01:40:14)
Mr. Chairman: (01:40:22)
We hear you.
Senator Harris: (01:40:23)
Mr. Chairman, this hearing has brought together more than-
Mr. Chairman: (01:40:27)
Senator Harris: (01:40:27)
… 50 people-
Mr. Chairman: (01:40:30)
Senator Harris: (01:40:30)
… to sit inside a room for hours, a closed door… Yes.
Mr. Chairman: (01:40:34)
Just wait. Just one second. We don’t see you.
Senator Harris: (01:40:36)
Of course. You don’t see me.
Mr. Chairman: (01:40:40)
One, congratulations on being the ticket. I told you that. There we go. All right. [crosstalk 01:40:45]-
Senator Harris: (01:40:45)
Can you see me now?
Mr. Chairman: (01:40:46)
Yeah, I see you now, hear you loud and clear. The floor is yours.
Senator Harris: (01:40:49)
Mr. Chairman, can you hear me, can you hear me?
Mr. Chairman: (01:40:50)
I see you. I hear you. The floor is yours.
Senator Harris: (01:40:53)
Okay. I appreciate it. Thank you, Mr. Chairman. This hearing has brought together more than 50 people to sit inside of a closed-door room for hours while our nation is facing a deadly airborne virus. This committee has ignored common sense requests to keep people safe, including not requiring testing for all members, despite a coronavirus outbreak among senators of this very committee. By contrast and response to this recent Senate outbreak, the leaders of Senate Republicans rightly postponed business on the Senate floor this week to protect the health and safety of senators and staff.
Senator Harris: (01:41:36)
Mr. Chairman, for the same reasons, this hearing should have been postponed. The decision to hold this hearing now is reckless and places facilities workers, janitorial staff, and congressional AIDS and Capitol Police at risk, not to mention that while tens of millions of Americans are struggling to pay their bill, the Senate should be prioritizing coronavirus relief and providing financial support to those families.
Senator Harris: (01:42:05)
The American people need to have help to make rent or their mortgage payment. We should provide financial assistance to those who have lost their job and help parents put food on the table. Small businesses need help, as do the cities, towns, and hospitals that this crisis has pushed to the brink. The House bill would help families and small businesses get through this crisis, but Senate Republicans have not lifted a finger for 150 days, which is how long that bill been here in the Senate to move the bill, yet this committee is determined to rush a Supreme Court confirmation hearing through and just 16 days. Senate Republicans have made it crystal clear that rushing a Supreme Court nomination is more important than helping and supporting the American people who are suffering from a deadly pandemic and a devastating economic crisis.
Senator Harris: (01:43:05)
Their priorities are not the American people’s priorities, but for the moment, Senate Republicans hold the majority in the Senate and determine the schedule, so here we are. The Constitution of the United States entrust the Senate with the solemn duty to carefully consider nominations for lifetime appointments to the United States Supreme Court, yet the Senate majority is rushing this process and jamming President Trump’s nominee through the Senate while people are actually voting just 22 days before the end of the election. More than 9 million Americans have already voted, and millions more will vote while this illegitimate committee process is underway.
Senator Harris: (01:43:51)
A clear majority of Americans want whomever wins this election to fill the seat, and my Republican colleagues know that, yet they are deliberately defying the will of the people and their attempt to roll back the rights and protections provided under the Affordable Care Act. Let’s remember, in 2017, President Trump and congressional Republicans repeatedly tried to get rid of the Affordable Care Act, but remember, people from all walks of life spoke out and demanded Republicans stop trying to take away the American people’s healthcare.
Senator Harris: (01:44:32)
Republicans finally realized that the Affordable Care Act is too popular to repeal in Congress, so now they are trying to bypass the will of the voters and have the Supreme Court do their dirty work. That’s why President Trump promised to only nominate judges who will get rid of the Affordable Care Act. This administration with the support of Senate Republicans will be in front of the Supreme Court on November 10th to argue that the entire Affordable Care Act-
Senator Harris: (01:45:03)
… to argue that the entire Affordable Care Act should be struck down. That’s in 29 days, that that’ll happen. That’s a big reason why Senate Republicans are rushing this process. They are trying to get a justice onto the court in time to ensure they can strip away the protections of the Affordable Care Act. If they succeed, it will result in millions of people loosing access to healthcare at the worst possible time, in the middle of a pandemic.
Senator Harris: (01:45:33)
23 million Americans could lose their health insurance altogether. If they succeed, they will eliminate protections for 135 million Americans with preexisting conditions like diabetes and asthma, heart disease, or cancer. A list that now will include over 7 million Americans who have contracted COVID-19, insurance companies could deny your coverage or could sell you a plan that won’t pay a dime toward treating anything related to your preexisting condition.
Senator Harris: (01:46:07)
If the Affordable Care Act is struck down, you will have to, once again, pay for things like mammograms and cancer screenings and birth control. Seniors will pay more for prescription drugs and young adults will be kicked off of their parents’ plans. These are not abstract issues. We need to be clear about how overturning the Affordable Care Act will impact the people we all represent.
Senator Harris: (01:46:34)
For example, Micah, who is 11 years old and she lives in Southern California. So Micah enjoys being a Girl Scout and ice skating and reading and eating pasta and baking. Her mother says the only reason Micah is able to live her life as she does now is because of the Affordable Care Act guarantees that her health insurance can not deny the coverage or limit her care because it’s too expensive.
Senator Harris: (01:47:02)
You see, Micah has a congenital heart defect. She goes to multiple specialists throughout the year and gets an MRI with anesthesia every six months. At just 11 months old, Micah’s family had already hit $50,000 in medical expenses and her bi-annual MRI costs were $15,000 a session. So correction, by 11 months old, her family had hit $500,000 in medical expenses.
Senator Harris: (01:47:32)
If Republicans succeed in striking down the Affordable Care Act, insurance companies will be able to deny coverage for children with serious conditions. Children like Micah. And parents, well, they’ll be on their own. No one should face financial ruin to get their child, or their spouse, or their parent, the care they need. No family should be kept from seeing a doctor or getting treatment because an insurance company says that the treatment is too expensive.
Senator Harris: (01:48:03)
In America, access to healthcare should not be determined based on how much money you have, healthcare and access to healthcare should be a right. Micah and millions of others are protected by the Affordable Care Act know this is fundamentally what is at stake with this Supreme Court nomination. Of course, there’s more at stake.
Senator Harris: (01:48:25)
Throughout our history, Americans have brought cases to the United States Supreme Court in our ongoing fight for civil rights, human rights and equal justice. Decisions like Brown vs Board of Education, which opened up educational opportunities for black boys and girls, Roe vs. Wade, which recognized a woman’s right to control her own body. Loving v Virginia and Obergefell v Hodges, which recognized that love is love, and that marriage equality is the law of the land.
Senator Harris: (01:48:58)
The United States Supreme Court is often the last refuge for equal justice when our constitutional rights are being violated. Justice Ruth Bader Ginsburg devoted her life to fight for equal justice and she defended the constitution. She advocated for human rights and equality. She stood up for the rights of women. She protected workers. She fought for the rights of consumers against the big corporations. She supported LGBTQ rights and she did so much more.
Senator Harris: (01:49:35)
But now her legacy and the rights she fought so hard to protect are in jeopardy. By replacing Justice Ruth Bader Ginsburg with someone who will undo her legacy, President Trump is attempting to roll back American’s rights for decades to come. Every American must understand that with this nomination equal justice under law is at stake. Our voting rights are at stake, workers’ rights are at stake, consumer rights are at stake, the right to safe and legal abortion is at stake and holding corporations accountable is at stake, and again, there’s so much more.
Senator Harris: (01:50:24)
So Mr. Chairman, I do believe this hearing is a clear attempt to jam through a Supreme Court nominee who will take healthcare away from millions of people during a deadly pandemic that has already killed more than 214,000 Americans. I believe we must listen to our constituents and protect their access to healthcare and wait to confirm a new Supreme Court justice until after Americans decide who they want in the White House. Thank you.
Chairman Lindsey Graham: (01:51:00)
Thank you Senator Harris. Senator Kennedy.
Senator Kennedy: (01:51:07)
You have a beautiful family judge. We claim you in Louisiana. We’re proud of the fact in Louisiana that you were born in Metairie, a suburb of New Orleans, and we’re proud of the fact that you got a solid education at St. Mary’s Dominican High School. Come back and visit us. I know your mom and dad still live there and we’re very proud of you and your career.
Senator Kennedy: (01:51:50)
This was a solemn occasion, as it should be. I can’t think of another position, at least not a position that is for life, not a position in which the occupant is not elected by the people, that is more powerful, at least not in the Western world, than an associate justice of the Supreme Court. This process is not supposed to be the Big Rock Candy Mountain, our job is to advise and consent. That’s one way of saying that we’re supposed to make sure that whatever president makes the nomination hasn’t made a mistake, and we all, as you can see, take that job seriously, as you can see, and we know you respect that.
Senator Kennedy: (01:52:56)
That’s why I think over the next several days, it’s appropriate for us to talk about your intellect, which is obvious, by the way, and your temperament, your character and your judicial philosophy. I hope we can talk about something else. That’s the role of the federal judiciary in American life. Now, look, judge, I’m not naive. I understand this thing can turn sour real fast. We all watched the hearings for Justice Kavanaugh. It was a freak show. It looked like the cantina bar scene out of Star Wars.
Senator Kennedy: (01:53:55)
I know, for someone unaccustomed to it, that it hurts to be called a racist. I think it’s one of the worst things you can call an American. I know that it hurts to be called a white colonialist and I know it must hurt for someone of deep Christian faith like yourself to be called a religious bigot, and to have it implied that because you are a devout Christian, that you’re somehow unfit for public service, before it’s over with, they may call you Rosemary’s baby for all I know. I hope not.
Senator Kennedy: (01:54:43)
I know, as we’ve seen this morning, I know you think it’s unfair, it is unfair, for my colleagues to suggest some overtly, some more indirectly, that you’re put on the United States Supreme Court, you will be on a mission from God to deny healthcare coverage for free existing conditions for every American. I know that seems preposterous to you, and it seems that way because it is. Take comfort in the fact that the American people, some of my colleagues disagree with this statement, they believe in government. I believe in people. The American people are not morons. They can see drivel when they see it and they can appreciate it when they see it for being what it is.
Senator Kennedy: (01:55:45)
Now, let me turn to what I hope, quickly, we can talk about today. Americans love democracy. We’ll even fight for it, and we have, and that’s a wonderful thing. It’s an important thing in today’s world as this world becomes more authoritarian, and our founders … But we don’t have a pure democracy. As a columnist I read this morning said, “When we have to decide a complex issue dealing with social norms or economic issues, we don’t all put on a Toga and go down to the forum and vote. We have elected representatives.” Those are members of Congress, and it is our elected representatives job to decide social and economic policy, and if we don’t like what they do, they’re accountable, we vote them out.
Senator Kennedy: (01:56:43)
But in the last 50 years, certainly in the last 25, the United States Congress, either voluntarily or involuntarily, has seeded a lot of its power to the executive branch and to the federal judicial. When I say the executive branch, I’m not necessarily talking about the president, I’m talking about the administrative state. The bureaucracy as some call it. It’s this giant rogue beast that enjoys power now, that only kings once enjoyed.
Senator Kennedy: (01:57:18)
Members of the administrative state write their own laws, they interpret their own laws, they litigate their own laws in their own courts before judges that they oppose, and Congress has allowed that to happen. I think Congress has also abdicated a lot of power to the federal judiciary. I do. I’m not sure saying that federal judges don’t make law, of course they make law. They make law in the context of a specific case, it’s called judicial precedent.
Senator Kennedy: (01:57:52)
But our founders intended federal judges to exercise judicial restraint and to understand the special role, scope and mission of the federal judiciary vis-a-vis the United States Congress. I don’t think our founders intended judges to be politicians in robes. I think our founders intended judges, federal judges, to tell us what the law is, not what the law to be. I think our founders intended, as the chief justice put it, I think our founders intended federal judges to call balls and strikes.
Senator Kennedy: (01:58:40)
I don’t think our founders intended for federal judges to be able to redraw the strike zone. I don’t I think our founders intended for judges to be politicians in robes. Politicians, you don’t want the United States Supreme Court to turn into this, trust me. Politicians get to vote their preferences under our democracy. Judges do not. Judges do not.
Senator Kennedy: (01:59:11)
Finally, unlike some of my colleagues, I don’t think our founders intended the United States Supreme Court to become a mini congress. I don’t think our founders intended members of the United States Supreme Court to try to rewrite our statutes, or the United States constitution every other Thursday to prosecute a social or an economic agenda that they can’t get out the voters. That goes on in America every day. We’ve reached the point where one single solitary judge, in a limited venue, can enjoin a federal statute or an executive order of the president of United States for the entire country. Our founders never intended that.
Senator Kennedy: (02:00:09)
I want to close with two very short quotations, the first stated much more eloquently than I can is Justice Curtis in 1857, you probably read it. He was dissenting in the Dred Scott Case. This is what Judge Curtis said, ” When a strict interpretation of the constitution, according to the fixed rules which govern the interpretation of laws is abandoned, and the theoretical opinions of individuals are allowed to control it’s meaning we have no longer a constitution. We’re under the government of individual men, who for the time being, have power to declare what their constitution is, according to their own views of what it ought to mean.”
Senator Kennedy: (02:01:05)
And finally, a more contemporary statement from a gentleman that you’re very familiar with, Justice Scalia. He said it in real-world terms, this is what he said, “The American people love democracy, and the American people are not fools. The American people know their value judgments are quite as good as those taught in any law school, maybe better. Value judgements after all should be voted on, not dictated.” Thank you, Mr. Chairman.
Chairman Lindsey Graham: (02:01:43)
Thank you Senator Kennedy. Senator Blackburn.
Senator Blackburn: (02:01:46)
Thank you, Mr. Chairman. Judge Barrett, congratulations to you and to your family. I’m delighted to see that they are back in the room and I’m thrilled that they are here with us today. We have had 164 American citizens come before this committee for nomination to the Supreme Court, and today is the fifth time that we have had a female judge come before us. So we welcome you.
Senator Blackburn: (02:02:19)
I will say this, unfortunately, it’s neither rare nor remarkable to see the kind of performances my democratic colleagues have put on today. What they’re trying to do is to convince the American people that they should be terrified of Judge Amy Coney Barrett. If you listen closely to their full statements it betrays their true intent. If you go back through the transcript, you’re going to fund not a coherent legal counter argument, but a panicked stumped speech on behalf of their controversial platform.
Senator Blackburn: (02:02:56)
Rather than reviewing your judicial philosophies, they’re instead choosing to project their own desires and their fears onto the American people. It sounds as if they are trying to create a panic. They decided to drum up indignation over the fact that you dared to present a counter argument against the constitutionality of the Affordable Care Act. Apparently, a difference of opinion between two brilliant jurists who often disagree is just too much for them.
Senator Blackburn: (02:03:34)
The rhetoric is unsettling, but after listening to them, I worry more about it’s underpinnings because my colleague’s remarks have displayed their troubling belief that nothing but an activist judiciary will do for them. Given your track record, you would think that my colleagues would jump at the opportunity to support a successful female legal superstar, who is highly regarded by both her democratic and Republican colleagues and who is a working mom. But as today’s increasingly paternalistic, and frankly, disrespectful arguments have shown, if they had their way, only certain kinds of women would be allowed into this hearing room.
Senator Blackburn: (02:04:26)
On that note, not so long ago, in another hearing, they scrutinized your commitment to your Catholic faith and tried to use that as a way to question your competency and your professionalism. They know that that is unconstitutional. The constitution forbids it. You are a brilliant jurist and a constitutional law expert, you will be an intellectual powerhouse on the Supreme Court, and you will steer the panel’s focus toward textualism and originalism as rightful guiding philosophies.
Senator Blackburn: (02:05:08)
I love Justice Scalia’s definition of textualism, “Textualism in its present form begins and ends with what the text says and fairly implies.” He goes on to defend textualism and explains that this method can lead to both conservative and liberal outcomes. ” Similarly, originalism doesn’t always lead a jurist down the path they had most liked to follow, this method of interpretation holds that the meaning of a legal document, such as the constitution, remains fixed. Even when applied over time to new questions. Staying true to these guidelines requires more study and patience than other methods that allow judges to reinvent the law or be activist when things get tricky.” Since taking the bench, I appreciate that you have written over 100 opinions and have participated in over 900 appeals where you have applied this complex reasoning. Thank you for that.
Senator Blackburn: (02:06:27)
We know that you are a prolific scholar and author of over a dozen articles on the courts and the constitution. The ABA has rated you as well-qualified to serve as a Supreme Court justice. I appreciate that many times you’ve probably done this with the child in your arms, on your hip, or somewhere in tow, maybe waiting for a ballgame to began.
Senator Blackburn: (02:06:56)
You have done all of this as you have been a friend, a mentor, a wife and a mom. These are impressive qualifications by any standard. So it is no surprise that you are fielding attacks from other angles. Many of my colleagues have wasted a lot of their time complaining that the process in an effort to delay and obstruct a legitimate, constitutionally-sound confirmation hearing.
Senator Blackburn: (02:07:28)
Let’s not forget, it was the Democrats who took an ax to process in 2018 when they dropped last minute, unsubstantiated sexual assault allegations against Justice Kavanaugh. We still don’t have the full story about their level and manner of coordination with activists and mainstream media outlets. But what we do know is that they turned that confirmation into a circus. On that note, it is hard to take seriously their complaints about moving too quickly. We’ve heard about the timeline for Justice O’Connor, 33 days, Justice Ginsburg, 43 days. Just a word on Justice Ginsburg whose seat we are filling. She was indeed a role model for many because she fought to open more doors for women in the law and beyond, and I sincerely hope that I am as effective an advocate in the Senate as she was on the court.
Senator Blackburn: (02:08:35)
We know from studying American history that women have had to always fight for a seat at the table. This goes back to Abigail Adams who urged her husband, John, to please remember the ladies in their fight for independence. We know it took 150 years for women to get that right to vote, but the constitutional allowed for that amendment process.
Senator Blackburn: (02:09:03)
Unfortunately, what we see today is that radical activists would like nothing more than to take a hatchet to process. Their favorite play is confronting the American people with the supposedly illegitimacy of the constitution. They argue that our founders flaws and yes, they were flawed, all humans are, that the flaws invalidate the principles that bind this country together. This betrays a dangerously naive understanding of the point and purpose of our founding legal document.
Senator Blackburn: (02:09:41)
The timeless principles contained in that document were written to protect individual rights absolutely. These principles, of course, include the separation of powers and federalism in our government, a system of checks and balances that prevents encroachments by one branch or another. If Congress acts beyond the scope of its legislative authority, or the president grows too power hungry, the judiciary has the authority to reign that branch back in. And if the vast bureaucracy dares to overregulate states, then their citizens have the right to stand up and challenge that overreach as being beyond the scope of federal power. Together, the separation of powers and federalism have protected our Republic from falling into the hands of tyrants. But keep in mind that the founders despised the tyranny of British rule just as much as they despised the whims of the mob.
Senator Blackburn: (02:10:45)
Flash forward to today, when American exceptionalism is under bitter attack from yet another mob, while most Americans take pride in our heritage, a vocal minority finds fault at every turn. They demand to know, can we still call the constitution a relevant, valid source of law, even if no women or people of color participated in the drafting? Are the principles in that document still capable of curbing abuses of power and safeguarding freedom? Can we have faith that the future of democracy remains strong despite a summer of looting and violence in the streets? The answer to each is yes. Over the next few days, I expect that you, Judge Barrett, will explain why. So many families are watching today and we’re all going to be listening. Thank you for appearing before us. We look forward to your answers.
Chairman Lindsey Graham: (02:11:43)
Thank you Senator Blackburn. I have two letters I’d like to submit for the record. One from the Architect of the Capitol, showing that the room is CDC compliant. We’ll introduce that. We do have the ABA rating regarding Judge Barrett. I’ll introduce it in the record, but is fairly short. So I’ll just read it if that’s okay.
Chairman Lindsey Graham: (02:12:02)
“The American Bar Association’s Standing Committee on the Federal Judiciary has completed its evaluation of the professional qualifications of Judge Amy Coney Barrett, who has been nominated by the president to be an associate justice of the Supreme Court of the United States. And as you know, the Standing Committee confines its evaluation to the qualities of integrity, professional competence and judicial temperament. A substantial majority of the standing committee determined that Judge Barrett is well-qualified and a minority is of the opinion that she is qualified to serve on the Supreme Court of the United States. The majority writing represents the Standing Committee’s official rating.” Enter that into the record. Now we have a-
Senator Kennedy: (02:12:51)
Chairman Lindsey Graham: (02:12:52)
Senator Kennedy: (02:12:52)
Could you explain what CDC compliant means?
Chairman Lindsey Graham: (02:12:57)
It means that the room is set up, social distancing regarding the virus, that the Architect of the Capitol measured the space. As to me, I was tested a week ago, Friday, I had brief contact with Senator Lee. I was negative. I’ve been told by Senator Moynihan and a physician in South Carolina. There’s no requirement to test me. I feel fine. My exposure is not such that I should be quarantined or tested. Anybody that wants to get tested, they can.
Chairman Lindsey Graham: (02:13:27)
I made a decision and to try to make the room as safe as possible, but to come to work. Millions of Americans are going to work today, somebody may have tested positive in a restaurant, a military unit, a fire department, or police department. You make it as safe as possible, you manage the risk and you go to work. I’m not going to be told to be tested by political opponents, I’m going to be tested as an individual when the CDC requires it. I think we can safely conduct this hearing we have, and I think it’s off to a good start. So I do care about everybody’s safety, but as a lot of Americans out there, we have to go to work and you can’t demand not to show up to work unless everybody you may come in contact with is tested, whether they need to or not. We’re not going to do that here. Now we have a panel-
Senator Kennedy: (02:14:15)
Thank you Mr. Chairman.
Chairman Lindsey Graham: (02:14:16)
Thank you, Senator Kennedy, for that question. We have three people, our two colleagues from Indiana, Senator Todd Young and Senator Mike Braun. I know Louisiana adopts our judge here, but she is living now in Indiana. The third is Professor Patricia O’Hara, who I’d like to briefly introduce.
Chairman Lindsey Graham: (02:14:39)
Professor O’Hara is a professor Emerita, I hope I got that right, of Law, at Notre Dame Law School. She has served on the faculty for 40 years. She first arrived in Notre Dame in 1971 as a first-year law student. She graduated summa cum laude, and first in her class in 1974. Described as the heart and soul of Notre Dame for over 40 years, by current Notre Dame Law Dean G. Marcus Cole, “Professor O’Hara’s career at Notre Dame was that of a trailblazer. She was the first woman to graduate first in her class from Notre Dame. The first woman appointed by the board of trustees to serve as an officer of the university, as vice president for student affairs and the first woman to serve as dean of the law school.” So with that, we will start with Senator Todd. I think all these individuals are remote. Senator Todd.
Senator Todd: (02:15:39)
Well, thank you Chairman Graham, Ranking Member Feinstein, and members of the committee. Today, I join you in the shadow of Monument Circle in Indianapolis, Indiana. I am honored to appear before you to introduce Judge Amy Coney Barrett, a remarkable Hoosier who is to make her mark on our country. She truly is an American original.
Senator Todd: (02:16:01)
In 2017, when there was an opening on the US Court of Appeals for the Seventh Circuit, my office began looking for an extraordinary American who would uphold the rule of law. In response, we received dozens of applications from many of the finest legal minds in the State of Indiana. My staff and I began researching in earnest to learn everything we could about each candidate to determine who among them would make the best judge. I interviewed the best of the best. One of those was a constitutional law professor from the University of Notre Dame by the name of Amy Coney Barrett.
Senator Todd: (02:16:43)
I first met with then Professor Barrett in the spring of 2017, and it was abundantly clear that she was a star, a brilliant legal scholar. She was and is, held in the highest regard by her peers in the legal world. Her integrity and character are unimpeachable. She is a model of collegiality and fairness, and simply she possessed all of the necessary qualities to be a great appellate court judge then, and to be a great Supreme Court justice now.
Senator Todd: (02:17:18)
My colleague, former Senator Joe Donnelly and I approved of her nomination in a hearing was set. Unfortunately, some resorted to attacks on Judge Barrett’s religious convictions. I can tell you that in Indiana, and much of the country, faith is viewed as an asset in a public servant, not a liability. As Notre Dame President and Father Jenkins reminded us then, “Being a person of faith doesn’t interfere with one’s ability to apply the law.” Thankfully, Judge Barrett’s qualifications outshone personal attacks, and she was confirmed by a bipartisan majority to the US Court of Appeals for the Seventh Circuit.
Senator Todd: (02:18:06)
As a member of that court, Judge Barrett’s proven that she is a rather brilliant jurist who interprets the constitution as written, and carefully weighs the facts of a given case. She’s heard more than 600 cases on the Seventh Circuit and authored nearly 100 opinions. I should know she is the first woman from Indiana ever to serve on that esteemed court.
Senator Todd: (02:18:33)
During that Seventh Circuit interview, back in 2017, it was obvious that Judge Barrett loved the law and the constitution. He love for her family, her husband Jesse, and their seven children was also clear. If confirmed, Judge Barrett will be the fifth woman and the first mother of school age children to serve as a Supreme Court justice. Now being a parent, doesn’t qualify one to sit on the Supreme Court, but it does give us Hoosiers yet another reason to be proud of Amy Coney Barrett and the trail she’s blazed leading her to this moment.
Senator Todd: (02:19:11)
Education, faith, family, community, equal justice under the law. These are all values that Midwesterners hold dear. Indeed, they are values that Americans hold dear, and they are all values embodied by Judge Barrett. Author Kurt Vonnegut, another American original from Indiana once said, “I don’t know what it is about Hoosiers, but wherever you go, there’s always a Hoosier doing something very important.” Where Amy Coney Barrett has gone, she has always been doing something very important.
Senator Todd: (02:19:52)
From raising a family to educating the next generation of scholars, to administering justice on the Court of Appeals. It’s my hope that this body will confirm Judge Barrett …
Senator Young: (02:20:03)
It’s my hope that this body will confirm Judge Barrett in a bipartisan fashion so that we will soon find another Hoosier doing something very important on the Supreme Court of the United States. Thank you, Mr. Chairman.
Mr. Graham: (02:20:16)
Thank you very much, Senator Young. Senator Braun, we were able to connect with him. We’re having some technical problems. We’re good? Senator Braun. [crosstalk 02:20:29] Can you hear me?
Sen.Mike Braun: (02:20:34)
I can hear you.
Mr. Graham: (02:20:35)
All right. Floor’s yours.
Sen.Mike Braun: (02:20:36)
Mr. Graham: (02:20:37)
Sen.Mike Braun: (02:20:40)
Hey. Chairman Graham, ranking member Feinstein, It’s an honor for me to join Senator Young and Professor O’Hara to introduce a fellow Hoosier that makes our state proud. I’m doing this from my hometown Jasper, Indiana at city hall, literally, and we’re on Main Street. And figuratively, from a place town state that represents a broad cross section of our country. In 2013, Justice Antonin Scalia wrote that the federal judiciary is hardly a cross section of America. Today it’s still easy to see what he meant. When confirmed, Amy Coney Barrett would become the only justice of the Supreme Court who spent the majority of her professional life in middle America, not on the East Coast. When confirmed, she will be the only sitting justice who did not receive her law degree from Harvard or Yale yet her Notre Dame law credentials are also from a first grade university. When confirmed, she will be only the second current justice did join the court from West of the nation’s capitol.
Sen.Mike Braun: (02:21:58)
When this vacancy arose, I was the first to voice my support for a nominee from the Midwest because I believe we need more judges who understand those Midwestern values that guide our lives; faith, family, community, and respect for the law. Amy Coney Barrett is that quintessential Midwesterner, hardworking, generous, humble. She’s a top flight law scholar who’s just as comfortable at the Saturday morning tailgate as she is in the ivory town, a legal titan who drives a minivan. I immediately supported Judge Barrett’s nomination, not only because she is a highly qualified jurist, but because she’s proven both on and off the bench, that she has a decency and fundamental respect our country and its constitution to serve honorably. And now I’d like to say a word about faith. Much will be made in the coming days of Judge Barrett’s Catholic faith and how she practices it.
Sen.Mike Braun: (02:23:06)
It’s a faith that I, and many Americans share. Our founders anticipated this question. And as they so often do, got it right. Liberals and Conservatives alike are bound by the constitution’s firm [inaudible 02:23:21] that no religious test should ever be required as a qualification to any office of public trust under the United States. I believe hostility toward Judge Barrett’s religious beliefs today could set a dangerous precedent of hostility toward other religious beliefs tomorrow. Judge Barrett has been clear in her public life where she falls on the question of faith and the law. As she concluded in the 1998 essay, we’re sure to hear it cherry picked over the next few weeks, judges cannot nor should they try to align our legal system with the church’s moral teaching whenever the two diverge. Faith is very important to most Americans. And I agree that faith should be a key word in Judge Barrett’s confirmation. But I believe the most important question of faith should be, is she willing to faithfully interpret the constitution?
Sen.Mike Braun: (02:24:29)
Judge Barrett’s record shows that she will. Throughout her nearly 100 written opinions on the appellate court, judge Barrett has proven that she is a strong, constitutional originalists who will not cut the American people out of their own government by treating the Supreme Court as a third chamber of Congress. On the bench, her qualifications are beyond question. Off the bench, she exemplifies a generosity and character Hoosiers are known for, and she has lived a life rooted in those Heartland values I mentioned before; faith, family, community and respect for the law. Hoosiers should be proud to have Amy Coney Barrett serving and representing our state currently. And I believe she will make all Americans proud as a justice of the Supreme Court. Thank you.
Mr. Graham: (02:25:25)
Thank you, senator. Professor O’Hara. Professor? Is the professor with us? Professor could you count to 10, please? Could you speak if you can hear me?
Mr. Graham: (02:26:23)
Professor O’Hara, if you can speak up. If you hear me, please speak up. Okay.
Mr. Graham: (02:26:43)
I know. She must be in the 3G part of Indiana. See if we’re in contact with her at all. Is it working? Professor, could you speak up please.
Speaker 1: (02:27:15)
Suggest that she unmute her mic.
Mr. Graham: (02:27:17)
You need to unmute your mic, I’ve been told, Professor O’Hara. How does she do that?
Mr. Graham: (02:27:35)
Put a quarter in it, I don’t know. You’re not going to give us a quarter, I know that.
Mr. Graham: (02:27:44)
Can she hear us?
Mr. Graham: (02:27:58)
Well. I’m afraid we have technical difficulties. And I guess what we’ll do now, if you can fix them in the next 30 seconds, let me know. If not, Judge Barrett, we’ll hear from you. Any progress with Professor O’Hara?
Mr. Graham: (02:28:18)
Okay. Judge, if you don’t mind, you can take your mask off please. Raise your right hand. Stand up, please. Do you solemnly swear that the testimony you’re about to give this committee is the truth, the whole truth and nothing but the truth, so help you God?
Mr. Graham: (02:28:38)
Thank you. Welcome to the committee. To your family, all have done a great job over there. The floor is yours judge.
Hon. Amy Coney Barrett: (02:28:51)
Chairman Graham. Make sure this is on. Ranking member Feinstein and members of the committee, I’m honored and humbled to appear before you today as a nominee for associate justice of the Supreme Court. I thank the president for entrusting me with this profound responsibility as well as for the graciousness that he and the first lady have shown my family throughout this process. I thank Senator Young for introducing me as he did at my hearing to serve on the Seventh Circuit. And I also thank Senator Braun for his support. And while she could not be with us via the satellite, I am also grateful to former dean Patty O’Hara of the Notre Dame Law School. She hired me as a professor nearly 20 years ago, and she has been a mentor, colleague and friend ever since. I thank the members of this committee and your other colleagues in the Senate who’ve taken the time to meet with me since my nomination.
Hon. Amy Coney Barrett: (02:29:58)
It’s been a privilege to meet you. As I said when I was nominated to serve as a justice, I’m used to being in a group of nine, my family. Nothing is more important to me and I’m very proud to have them behind me. My husband Jesse and I have been married for 21 years. He has been a selfless and wonderful partner every step of the way. I once asked my sister, “Why do you think marriage is hard? People are always saying that. I think it’s easy.” And she looked at me and said, “Well, maybe you should ask Jesse if he agrees with that.” I decided not to take her advice because I know that I’m far luckier in love than I deserve. Jesse and I are parents to seven wonderful children. Our oldest daughter, Emma, is a sophomore in college who just might follow her parents into a career in the law.
Hon. Amy Coney Barrett: (02:30:54)
Next is Vivian who came to us from Haiti. When Vivian arrived she was so weak that we were told she might never talk or walk normally, but now she dead lifts as much as the male athletes in her gym and I assure you, she has no trouble talking. Tess is 16, and while she shares her parents’ love for the liberal arts, she also has a math gene that seems to have skipped her parents’ generation. John Peter joined us shortly after the devastating earthquake in Haiti and Jesse who brought him home still describes the shock on JP’s face when he got off the plane in wintertime Chicago. Once that shock wore off, JP assumed the happy-go-lucky attitude that is still his signature trait. Liam is smart, strong, and kind, and to our delight, he still loves watching movies with mom and dad. Ten-year-old Juliet is already pursuing her goal of becoming an author by writing multiple essays and short stories.
Hon. Amy Coney Barrett: (02:31:58)
One of which she recently submitted for publication. And our youngest Benjamin is at home with friends. Benjamin has down syndrome and he is the unanimous favorite of the family. He was watching the hearing this morning, I’m told, and he was calling out our names as he saw the kids in the back. My own siblings are here, some in the hearing room and some nearby. Carrie, Megan, Eileen, Amanda, Vivian, and Michael are my oldest and dearest friends. We’ve seen each other through both the happy and hard parts of life and I am so grateful that they are with me now. My parents, Mike and Linda Coney, are watching from their new Orleans home. My father was a lawyer and my mother was a teacher, which explains why I became a law professor. More important, my parents modeled for me and my six siblings, a life of service, principle, faith, and love.
Hon. Amy Coney Barrett: (02:32:56)
I remember preparing for a grade school spelling bee against a boy in my class and to boost my confidence, my dad saying, “Anything boys can do, girls can do better.” And at least as I remember it, I spelled my way to victory. I received similar encouragement from the devoted teachers at St. Mary’s Dominican, my all girls high school in new Orleans. When I went to college, it never occurred to me that anyone would consider girls less capable than boys. My freshman year, I took a literature class filled with upperclassmen English majors. And when I did my first presentation, which was on Breakfast at Tiffany’s, I feared I had failed. But my professor took the time to talk to me and she filled me with confidence about how well I had done and she became a mentor. And when I graduated with a degree in English, she gave me Truman Capote’s collected works as a gift.
Hon. Amy Coney Barrett: (02:33:51)
Although I considered graduate studies in English, I decided that my passion for words was better suited to deciphering statutes than novels. I was fortunate to have wonderful legal mentors. In particular, the judges for whom I clerked. The legendary Judge Laurence Silberman of the D.C. Circuit gave me my first job in the law and he continues to teach me today. He was by my side during my Seventh Circuit hearing, he swore me in at my investiture and he’s cheering me on from his living room right now. I also clerked for Justice Scalia. And like many law students, I felt like I knew the justice before I ever met him because I had read so many of his colorful, accessible opinions. More than the style of his writing though, it was the content of Justice Scalia’s reasoning that shaped me.
Hon. Amy Coney Barrett: (02:34:48)
His judicial philosophy was straight forward. A judge must apply the law as it is written, not as she wishes it were. Sometimes that approach meant reaching results that he did not like, but as he put it in one of his best known opinions, that is what it means to say that we have a government of laws and not of men. Justice Scalia taught me more than just law. He was devoted to his family, resolute in his beliefs and fearless of criticism. And as I embarked on my own legal career, I resolved to maintain that same perspective. There’s a tendency in our profession to treat the practice of law as all consuming while losing sight of everything else. But that makes for a shallow and unfulfilling life. I worked hard as a lawyer and as a professor, I owed that to my clients, to my students and to myself, but I never let the law define my identity or crowd out the rest of my life.
Hon. Amy Coney Barrett: (02:35:59)
A similar principle applies to the role of courts. Courts have a vital responsibility to the rule of law, which is critical to a free society, but courts are not designed to solve every problem or right every wrong in our public life. The policy decisions and value judgments of government must be made by the political branches, elected by and accountable to the people. The public should not expect courts to do so and courts should not try. That is the approach that I have strived to follow as a judge on the Seventh Circuit. In every case, I have carefully considered the arguments presented by the parties, discussed the issues with my colleagues on the court and done my utmost to reach the result required by the law whatever my own preferences might be. I try to remain mindful that while my court decides thousands of cases a year, each case is the most important one to the litigants involved.
Hon. Amy Coney Barrett: (02:37:12)
After all, cases are not like statutes which are often named for their authors. Cases are named for the parties who stand to gain or lose in the real world often through their liberty or livelihood. When I write an opinion resolving a case, I read every word from the perspective of the losing party. I ask myself how I would view the decision if one of my children was the party that I was ruling against. Even though I would not like the result, would I understand that the decision was fairly reasoned and grounded in law? That is the standard that I set for myself in every case and it is the standard that I will follow so long as I am a judge on any court. When the president offered me this nomination, I was deeply honored, but it was not a position I had sought out and I thought carefully before accepting.
Hon. Amy Coney Barrett: (02:38:13)
The confirmation process and the work of serving on the court, if confirmed, requires sacrifices, particularly from my family. I chose to accept the nomination because I believe deeply in the rule of law and the place of the Supreme Court in our nation. I believe Americans of all backgrounds deserve an independent Supreme Court that interprets our constitution and laws as they are written. And I believe I can serve my country by playing that role. I come before this committee with humility about the responsibility that I have been asked to undertake and with appreciation for those who have come before me. I was nine years old when Sandra Day O’Connor became the first woman to sit in this seat. She was a model of grace and dignity throughout her distinguished tenure on the court. When I was 21 years old and just beginning my career, Ruth Bader Ginsburg sat in this seat.
Hon. Amy Coney Barrett: (02:39:18)
She told the committee, “What has become of me could only happen in America.” I have been nominated to fill Justice Ginsburg’s seat, but no one will ever take her place. I will be forever grateful for the path she marked and the life she led. If confirmed, it would be the honor of a lifetime to serve alongside the chief justice and seven associate justices. I admire them all and would consider each a valued colleague. And I might bring a few new perspectives to the bench. As the president noted, when he announced my nomination, I would be the first mother of school-aged children to serve on the court. And I know that it would make senators Young and Braun happy to know that I would be the first justice to join the court from the Seventh Circuit in 45 years. I would be the only sitting justice who didn’t attend school at Harvard or Yale, but I am confident that Notre Dame could hold its own and maybe I could even teach them a thing or two about football.
Hon. Amy Coney Barrett: (02:40:25)
As a final note, Mr. Chairman, I would like to thank the many Americans from all walks of life who have reached out with messages of support over the course of my nomination. I believe in the power of prayer. And it has been uplifting to hear that so many people are praying for me. I look forward to answering the committee’s questions over the coming days. And if I am fortunate enough to be confirmed, I pledge to faithfully and impartially discharge my duties to the American people as an associate justice of the Supreme Court. Thank you.
Mr. Graham: (02:41:03)
Thank you very much, Judge Barrett. Let’s try Professor O’Hara. Any luck with her?
Patricia O’Hara: (02:41:11)
I’m here, Chairman Graham.
Mr. Graham: (02:41:13)
Thank you. I apologize for the problem. The floor is yours.
Patricia O’Hara: (02:41:17)
That’s very kind of you. It’s anticlimactic because you’ve already heard from the most important person from whom you need to hear. But it’s very kind of you to take the time. I have known Judge Amy Coney Barrett for just shy of 20 years. And I want to thank you, the ranking member, Senator Feinstein, the distinguished members of the judiciary committee, Senator Young and Senator Braun for the opportunity to speak about her here today. I first came to meet her when, as dean of the law school together with my colleagues, we recruited her to the faculty in 2002. I was aware of her reputation as a law student, but I had not taught her. So I can well remember that in the initial interview, from my standpoint, I was not thinking of her so much as a Notre Dame alum, but rather as a candidate in whom many law schools would have an interest. After all, she was first in her class, she was executive editor of The Law Review.
Patricia O’Hara: (02:42:12)
She had helped two distinguish clerkships for demanding jurists, Judge Laurence Silberman on the Court of Appeals for the D.C. Circuit and Justice Antonin Scalia, a short period in private practice at then at Baker Botts and an Olin fellowship at George Washington University Law School. So from my standpoint as dean, in a market in which law schools compete aggressively for candidates with sterling credentials like hers, Amy Coney Barrett was a big hit and a big win for us. In the course of the next few years, I was responsible for creating an environment in which she could take her potential and reach the maturation that would be necessary to meet the demanding standards of excellence in scholarship and teaching for promotion to tenure. I want to assure you that it was the easiest task of my entire 10 years as dean. I watched her develop into an exceptional teacher and a superb scholar. Except that I must confessed to say watching her develop is a bit of a misnomer because in many ways, Judge Barrett sprang full roam into the legal academy.
Patricia O’Hara: (02:43:18)
The first of three distinguished teaching awards that she holds from our students was presented to her by only the second class that she taught. And in my annual visits to observe her classroom teaching, it became clear to me why that was the case. Our students then and now hold her in awe for the power of her intellect and for her consummate professionalism. To read her student teaching evaluations is like reading a thesaurus that only has superlative in it. Her classes are known for the clarity of the presentation of substantive legal material, but also for open-minded, non-directive discussion, question and answer respectful of differences and of differences [inaudible 02:44:00] style with our students. Our students strive to meet her high and demanding expectations because they just don’t want to disappoint her and they greatly appreciate her availability outside the classrooms through mentoring and support.
Patricia O’Hara: (02:44:14)
At the same time that she was developing and building relationships with our students, she also produced an incredible portfolio of scholarships both its depth and its quality. The scholars around the academy hold her work in the highest regard. And so when it did come time for her tenure case, I can only tell you without breaching the confidentiality with that process, that it was as easy as a tenure case could possibly be. Her work appears in leading law reviews; University of Chicago, Columbia, Cornell, Virginia, and Texas to name but a few. I was not surprised in later years when she was tapped for service on the Appellate Advisory Committee on the federal appellate rules of procedure and elected to the prestigious American Law Institute. And in her three years as a judge on the court of appeals for the Seventh Circuit, her opinions have been characterized by the same qualities as her scholarship; intellectual rigor, painstaking analysis, clarity of legal reasoning and of writing accompanied by her deep commitment as a jurist to apply the law to the facts of the case before her.
Patricia O’Hara: (02:45:22)
Stellar as her professional accomplishments are, no introduction of [inaudible 02:45:27] Barrett is complete without talking about her personal qualities. She’s brilliant but humble, fair and impartial but empathetic, open-minded and respectful of differences, a skilled listener, and able to build consensus, generous especially to those in need. If I had to describe her in just a few words, I would tell you that Amy Coney Barrett is a woman who leads an integrative life of mind, heart and soul. And it’s that integration that allows her to move so seamlessly between her professional responsibilities and her family commitments. It humbles me now as it did 12 years ago that I was tasked, at one point in my life, with evaluating the professional qualifications of Judge Barrett in a university setting. Truth be told, she ran circles around me as a junior faculty member and in the intervening years, she has left me completely in the dust. And nothing gives me more joy than to be able to say so because this is the standard of excellence that we should demand for institutions of singular importance to us.
Patricia O’Hara: (02:46:35)
I have only had two opportunities to communicate with this distinguished committee. The first was 10 years ago when I a wrote very strong letter of support for then nominee now justice, Elena Kagan, whose tenure as dean of Harvard Law School overlapped with my own tenure as dean here. The second is today in presenting Amy Coney Barrett to you and endorsing her in equally strong terms. There may be some who would find those two recommendations in juxtaposition, but I find them entirely consistent. Over the course of my 40 years in the legal academy, I’ve been blessed with the opportunity to meet many Supreme Court justices. As to the justices I’ve met, while their judicial philosophies may differ and their interpretive methodologies may differ, what they share is powerful intellects, rigorous work ethics, skilled listening skills, the ability to be open to persuasion and also to persuade themselves. To be fair and impartial.
Patricia O’Hara: (02:47:39)
They’re people of integrity. And they have a commitment to applying the law to the facts of the case before them. They understand that their role as justices is to advance the rule of law, not to advance personal policy preferences. They understand their solemn responsibility to preserve the court as an institution, not wings of the court, the court. A single institution that plays a singular role in our republic. I know firsthand from having worked closely with Judge Barrett for almost 20 years that she possesses all of these same qualifications in abundance. And I trust that over the course of the next few days, with the opportunity to engage in dialogue with her, that you will come to the same conclusion and recommend her for confirmation as an associate justice to the Supreme Court of the United States. Thank you so much for taking this late opportunity to have me say a few words about Professor Barrett.
Mr. Graham: (02:48:35)
Thank you very much, Professor O’Hara. Thank you, Judge Barrett. And to your family, congratulations and welcome. We’re going to have a couple long days ahead. Questions, for the record, will be due this Friday at 8:00 o’clock which is standard practice for the committee. We begin tomorrow, 30 minute rounds followed by 20 minute rounds. Just do the math. Got a couple long days ahead of us so get some rest. We will be in recess until tomorrow at 9:00 o’clock.