Amy Coney Barrett Senate Confirmation Hearing Day 3 Transcript

Senator Graham: (01:26)
It was a long day, I thought a productive day. We have 20 minute rounds and hopefully we can be done in time before dinner tonight. And we’ll plow ahead and have a few breaks along the way. So a couple observations from yesterday, there is a opportunity here to explore the nominee’s thinking to the extent she can share her thoughts without deciding a particular case that comes before her. Senator Harris, who I respect, suggested you were not candid. And Judge Barrett, I couldn’t disagree more. I think I’ve been here for a few of these.

I’ve voted for every nominee that has come before the committee. I think you have one thing in common, all of you, you’re highly qualified, capable people. I saw that in Justice Sotomayor and Justice Kagan submitted by President Obama. I definitely did not share their legal philosophy. I expected them to be fairly solid votes for the liberal side of the court, and generally speaking, they have been, but they’ve done so honorably. I think they have kept their commitment to be fair and impartial, but we do understand judicial philosophy matters.

There’s differences. I think everybody in America can get three hours of credit for originalism. It’s the most detailed explanation of legal philosophy, I think, any nominee has provided to the Senate, and I appreciate that. Senator Harris mentioned about how much more candid Justice Ginsburg was. And with all due respect to Senator Harris, I don’t agree with that. I think Justice Ginsburg established the Ginsburg rule for a reason. But what she cited in terms of evidence of candor was a very articulate statement by Justice Ginsburg as to why she embraced the pro-choice point of view.

That’s not being candid about the law. That’s being candid about who you are. I think it’s pretty clear to everybody who’s been watching these hearings that you and your family are pro-life, that you are a practicing Catholic and you adhere to the tenants of your faith. But I hope people also understand that you have made a pledge to the committee and to the country at large that you will set aside whatever religious views you have when it comes time to decide the law. There’s already been example on the seventh circuit where you upheld a legislative provision that restricted access to abortion clinics in terms of protesting.

I think it’s the bubble case. So I’m highly confident that you will judge every American based on their case, not the law of Amy. And here’s what is important to me, justice, excuse me, Senator Blackburn and Ernst are two conservative women on this committee. It is a very give and take society called America, but there’s one group in America I think has had a hard time of it and that’s conservatives of color and women conservatives. There’s an effort by some in the liberal world to marginalize the contribution because you come out on a different side of an issue, particularly abortion.

So this hearing to me is an opportunity to not punch through a glass ceiling, but a reinforced concrete barrier around conservative women. You’re going to shatter that barrier. I have never been more proud of a nominee than I am a view. You’ve been candid to this body about who you are, what you believe. You’ve been reinsuring in your disposition and this is history being made, folks. This is the first time in American history that we’ve nominated a woman who’s unashamedly pro-life and embraces her faith without apology and she’s going to the court.

A seat at the table is waiting on you. And it will be a great signal to all young women who share your view of the world that there’s a seat at the table for them. This won’t be celebrated in most places. It’d be hard to find much commentary about this moment in American history, but in many of our worlds, this’ll be celebrated. This has been a long time coming and we have arrived. So I want to thank President Trump for giving you the opportunity to showcase your talents. I believe that Justice Sotomayor and Kagan were incredibly qualified women of great character, disposition and integrity, and I believe the same about you.

So let’s talk a little bit about yesterday, Obamacare. This hearing has been more about Obamacare than it has you. Obamacare is on the ballot. If you want socialized single-payer healthcare, that’s on the ballot. Why does many of us object to Obamacare? It was written and passed on a partisan line, I think, on Christmas Eve. Most big changes in society have more buy-in than that. You’re talking about one fifth of the American economy. And as I said yesterday, from a South Carolina point of view, this has not worked out well. We started with five exchanges. We’re down to one. You have one choice. Four rural hospitals have closed, premiums have gone up, not down, by an average of 30%. And when you look at the formula used by Obamacare, I can understand why Senator Harris likes it the way it is. I can understand why Chuck Schumer likes it the way it is. Three states get 35% of all of Obamacare dollars, New York, California, Massachusetts. They’re 22% of the population. In South Carolina, if you had a per patient formula, no matter where you lived you got the same contribution from the federal government, South Carolina would receive almost an additional billion dollars.

I don’t blame California and New York and Massachusetts for wanting more. People in South Carolina should blame me and Senator Scott for accepting that construct. So when it comes to healthcare, we all have our different positions, but today is about you. And today is about whether or not you’re qualified to serve on the highest court in the land. Severability. Can you tell me again? I know you’ve been asked a hundred times. The doctrine of severability, what does it mean?

Amy Coney Barrett: (08:52)
The doctrine of severability …

Push the red button.

Okay. Can you hear me now?

Think so.

The doctrine of severability …

No, I can’t hear you now.

It’s not …

There we go. There we go.

Okay.

There we go.

So the doctrine of severability is a doctrine essentially of statutory interpretation. And what it means is if you have a statute and the Affordable Care Act is obviously a very long statute. If there’s one provision within the statute that’s unconstitutional, the question is whether that one section can simply be rendered null and excised from the statute, severed, so that the rest of the law stands or whether that provision is so central to the statute that it’s unconstitutionality, like once it’s pulled out the whole house of cards collapses.

And the presumption is always in favor of severability. It’s a question of your intent. The court looks … Sorry. Go ahead.

The main thing is the doctrine of severability has a presumption to save the statute, if possible. Is that correct?

That is correct.

So I want every conservative in the nation to listen to what she just said. The doctrine of severability presumes and its goal is to preserve the statute if that is possible. So from a conservative point of view, the generally speaking, we want legislative bodies to make laws, not judges. Is that correct?

That is correct.

And would it be further true that if you can preserve a statute, you try to, to the extent possible?

That is true.

Okay. That’s the law, folks. Abortion. You were read some statements by, I think it’s Saint, what’s the name of the pro-life group County?

The St. Joseph County Right to Life.

Okay. And you were asked by Senator Blumenthal, who I respect, whether or not their policy positions were illegal. Do you remember that?

I remember him asking me whether I accepted other policy positions on in vitro fertilization and whether it was in a rejection of Roe.

Yeah. Well, I remember an exchange where they took a statement from that group or some other group arguing for their criminalization. Remember that? The criminalization of IVF. Is that right?

Yeah, I think so.

Okay. And here’s my problem with that analysis. That was a position taken by a pro-life county organization. It’s not your job to pass judgment on the thoughts and beliefs of Americans, is it as Supreme Court Justice?

No, it is not.

So when they argue that something should be criminal, they have a right to make that argument, right?

They do. It also wasn’t in the ad that appeared next to the statement I said.

The main thing is how does something become criminal in our legal system in America?

When a legislative body passes a statute.

So here’s what I want you to know. Statements by political organizations are not law. And what we’ve tried to do yesterday was turn a pro-life group into a legislative buddy and tried to get you to rule on their beliefs. I think that is a dangerous thing for Americans to be asking a judge to do whether you’re on the right or the left. Here’s a statement from an organization I don’t particularly agree with and I want you to pass judgment as to whether or not that’s legal. The question for you would be, if some legislative body tried to criminalize this procedure, then that would be subject to litigation in court.

Is that correct?

That is correct.

A case in controversy doesn’t arise because you disagree with a statement of a private person or a private group. Is that correct?

That is correct.

A case in controversy arises around criminal law when somebody passes a criminal statute. Is that correct?

That’s correct.

Then and only then would you determine the constitutionality of that provision? Is that correct?

Well, actually not even then. The statute would have to be enforced against somebody, so a prosecutor would have to try to hold someone criminally liable for getting IVF, for example.

So the case in controversy concept would have to mature?

Yes, there would be quite a lot of maturation required.

Before it got Supreme Court, if it ever did. So I just want every American to know it’s not the role of Supreme Court Justice to pass judgment on your opinions. It’s the role of a Supreme Court Justice in very limited circumstances to pass judgment on laws passed by legislative bodies and in other circumstances, regulation, I would suppose. Now voting. Is it appropriate for legislative bodies to protect the integrity of the ballot box?

So any specific measures that legislative bodies took to protect the integrity of the ballot box could be subject to litigation, subject to challenge.

And that’s right. And as they are developed, the courts will hear cases if cases and controversies arise, right?

Yes.

One of the reasons we don’t have an agreement with the House is in their $2.2 trillion package, they’re mandating ballot harvesting as a national policy. I think it’s ripe for fraud. We’ve seen evidence of ballots being placed in people’s cars and dropped in ditches. So I think there will be an effort I hope to protect the integrity of the ballot and also ensure easy voting. I don’t think they’re contrary goals for the nation. Now, when it comes to being on the court itself and collaborating with other members of the court, what’s your experience been at the seventh circuit level?

How’s that played out?

It is so collegial. We all collaborate. I have the greatest respect and have had wonderful interactions with every single one of my colleagues.

Do you think you have the capability to fit in at the Supreme Court?

I hope so.

Okay. So we talked a lot about laws legalizing same sex marriage, the … Whats the name of the case?

Obergefell.

Okay. And you would, if anybody tried to change that precedent, one of the things you would look at is a reliance interest that people have formed around that piece of legislation?

Yes.

Same with Casey and Roe?

Yes.

Okay. So reaching a decision that the case was wrongly decided doesn’t end the debate in terms of whether or not it should be repealed. Is that correct?

That is correct.

And there is a very rigorous process in place to overturn precedent?

There is many factors, reliance being one.

Okay. Is there any constitutional right to a polygamous relationship?

Let’s see. That might be a question that could be litigated at … Polygamy obviously in many places is illegal now, but that could be an issue somebody might litigate before the court at some point.

Somebody might make the argument it’s possible for three people to love each other genuinely and that would work its way to the court if somebody wanted to make that argument. Is that correct?

Somebody could, yeah, make that argument.

So you’ve been asked a lot about Roe v. Wade and Casey. And one of the differences between Brown vs board of education and Roe line of cases is there’s active litigation regarding Roe. Is that correct?

That is correct.

I think Senator Hirono named eight or nine different cases that may come up to the court, cases in controversy. And one of the reasons you can’t tell us how you would rule is because there’s active litigation coming to the court. Is that correct?

That is correct.

And one of the reasons you can say with confidence that you think Brown vs board of education super precedent is that you’re not aware of any effort to go back to the good old days of segregation by a legislative body. Is that correct?

That is correct. And I’ve also said that in lectures, that Brown was correct as an original matter. So that is the kind of thing since I’ve said it in writing, I felt like I could express before the committee.

When it comes to Heller, there’s a legislative bodies all over the country passing laws regarding gun ownership. Are you aware of that?

I am aware of that.

Okay. When it comes to Citizens United, I think there’ll be some efforts after this election to maybe revisit that case. So the thing that I’m trying to establish here is that Heller, Citizens United, Roe, Casey are all actively being litigated because legislative bodies are playing in that arena. Is that a fair statement?

That’s a fair statement.

So your point to us is when is likely that case in controversies around the holding of a pick or case are going to come to the court, there’s only so much you can tell us about what you may or may not do.

Absolutely.

So that Roe v. Wade compared to Brown vs board of education is not super precedent?

Not super precedent as I was using that term in the articles that have been referred to.

Let me tell you from a common sense point of view why it’s not super precedent. I have legislation, 14 states have passed a law that I’m trying to get passed up here, that in the fifth month of pregnancy, 20 weeks, an unborn child is capable of feeling pain. I’m making the argument there’s a compelling state interest to protect that unborn child from a very painful death called abortion. There’s only seven nations on the entire planet that allow abortion on demand in the fifth month. Now that’s a political exercise we’re going through.

14 states have passed a version of what I’ve just described. That will be coming to the court, I would imagine, in the future. All I ask is that will you listen to both sides of the argument if it gets to you?

I will.

Thank you. Judge, all I can say, I’ve met a lot of people in this business and very impressive people. One of the highlights of my time on the committee is to get to meet incredibly talented, smart, squared away people. Judge, Justice Roberts sat right before you and didn’t have a note. A lot of people on my side are upset with him about this or that. Sometimes I disagree with him, but I do know this, that he’s doing what he thinks is best for the court and for the country. Justice Sotomayor and Kagan, delightful people, incredibly, wickedly, smart.

Justice Kagan had a biting sense of humor and they’re on the court because they should be. They’re on the court because they live lives worthy of being on the court. They’re on the court because they’re some of the smartest people in the land about the law. They’re on the court because they lived incredibly productive and meaningful lives. Justice Gorsuch and Kavanaugh are on the court for the same reasons. As to you, you’re every bit in their league. In my view, this is exactly where you should be going to the Supreme Court, that the United States of America will benefit from your participation at the Supreme Court.

You will offer a point of view that millions of Americans share. You will have life experiences that will round out the court. You will apply the law to the facts and that you are going to inspire a lot of young women just like Justice Ginsburg did, just like Justice Sotomayor and Kagan did. And the young women that you’re going inspire don’t have a whole lot of role models they can point to in terms of the media world in which we live in uplifting them. That’s about to change. To my Democratic colleagues, I understand where you’re coming from.

I understand what you want the court to do. You want the court to do things differently than we do. I don’t question your motives and I want to thank you for conducting this hearing in a way that has been respectful, has been challenging and the process will be moving forward here. And from the committee’s point of view, I think we’re on track to do it in a way that hopefully people will say, even though you disagree strongly, you’re not disagreeable. Senator Feinstein.

Senator Feinstein: (22:27)
Thanks very much, Mr. Chairman. Judge, I must say, I’m delighted to see your family here again, and I hope they feel that very special sense of pride in you. I’m sure they do. And I was thinking of my children and grandchildren, and this is really a once in a lifetime occasion. So I hope they find it very special in their lives.

Thank you, Senator.

You’re welcome. Yesterday, you spoke of California beef v. Texas, the current case seeking to-

… California v. Texas, the current case seeking to strike down the Affordable Care Act. You said, I think, that the issue before the court is severability, meaning whether the court can still uphold the Affordable Care Act if it rules that the individual mandate is unconstitutional. And you said yesterday this question was not before the court. As I understand this, Chief Justice Roberts and the majority did involve the issue of severability in a case known as the NFIB, National Federation of Independent Business v. Sebelius.

They’re the chief justice and the five/four majority that included Justice Ginsburg struck down one part of the law, the Medicaid expansion provision, but allowed the rest of the law to stand because they found it was severable from the portion they struck down. Justice Scalia dissented from this conclusion. Stated that, “The unconstitutionality of the individual mandate and the Medicaid expansion requires the invalidation of the Affordable Care Act’s other provisions.”

In other words, the Justice believed that the law was not severable and the entire law had to be struck down, including provisions protecting people with pre-existing conditions. You have been close to the Justice’s philosophy. And in these hearings, you’ve also said that this doesn’t mean you would reach all the same conclusions. So can you explain to us today how you would disagree or agree with Justice Scalia’s view of severability in that NFIB, National Federation of Independent Business Case?

What I think I can say without expressing disagreement or agreement for the reasons I said yesterday, not being able to grade precedence. The severability issue, first of all, the majority holding as you recognized was that even though the Medicaid provision was unconstitutional, it was severable. So Justice Scalia expressed his view in dissent. Even by Justice Scalia’s view, the issue would be different in California versus Texas for two reasons. One, Justice Scalia thought two provisions of the Constitution were unconstitutional.

So if you picture severability being like a Jenga game, it’s kind of if you pull one out, can you pull it out while it all stands? Or if you pull two out, will it still stand? So Justice Scalia, his view was that if you pulled those two provisions out, could it still stand? And here we’re talking about one. And also, Congress has amended the statute since NFIB versus Sebelius and it’s zeroed out the mandate. I mean, California versus Texas involves a different provision because of the zeroing out that was done by amendment. So that’s how the two cases present slightly different issues.

What do you think of all that?

What do I think of severability or?

In that instance?

I think the doctrine of severability as it’s been described by the court serves a valuable function of trying not to undo your work when you wouldn’t want a court to undo your work. Severability strives to look at a statute as a whole and say, would Congress have considered this provision so vital that kind of in the Jenga game pulling it out, Congress wouldn’t want the statute anymore? So it’s designed to effectuate your intent. But severability is designed to say, well, would Congress still want the statute to stand even with this provision gone? Would Congress still pass the same statute without it? So I think insofar as it tries to effectuate with Congress would have wanted, it’s the court and Congress working hand in hand.

Thank you. That’s quite a definition. I’m really impressed. Thank you. Some have argued that the Medicare program is unconstitutional … Well, it’s an unconstitutional exercising congressional spending power. They believe that the spending power does not exist at all. In talking about Medicare and Social Security, Professor Mike Rappaport of the University of San Diego Law wrote this, “It is worth remembering that these programs would never have taken their pernicious form if the Constitution’s original meaning had been followed in the first place.” Do you agree with originalists who say that the Medicare program is unconstitutional? And if so, why?

I’m not familiar with that article by Professor Rappaport, so I don’t know what reasoning he advances for claiming that the spending power as exercised and things like the Medicaid provision would be unconstitutional.

Well, it’s in Law & Liberty, July 23rd, 2015. But the question is, do you agree with originalists who say that the Medicare program is unconstitutional?

Well, let’s see. I can’t answer that question in the abstract because as we’ve talked about the no hints, no forecast, no previews rule. I also don’t know what the arguments would be. So I assume Professor Rappaport lays out a case but it’s not a question that I’ve ever considered before. But if I did consider it would be in the context of an actual case or controversy.

Well, I thank you. It’s hard for me to believe that that’s a real question. Because I think the Medicare program is really sacrosanct in this country. But let me ask you, last April, in the midst of the COVID-19 pandemic, the Supreme Court prevented Wisconsin from implementing a district court order that would have extended the state’s deadline for submitting absentee ballots. This would have given voters greater flexibility in casting absentee ballots for Wisconsin’s primary election.

Justice Ginsburg dissented. She criticized the court’s majority for putting its head in the sand with regard to the risks posed by COVID-19. She emphasized that courts and election officials must be able to react to a grave rapidly developing public health crisis. And she noted that the Supreme Court’s, “Suggestion that the current situation is not substantially different from an ordinary election boggles the mind.” Would you agree, and what is your position?

Well, Senator Feinstein, that’s obviously a very recent case. And in that case, the court had to address the constitutional question. And so, again, it’s one of those things that I can’t answer both because it would be requiring me to grade and express agreement or disagreement with the Supreme Court opinion. But also, it’s the kind of case that could come up in a closely related form, either on the Seventh Circuit, Wisconsin is within the seventh circuit’s jurisdiction or on the Supreme Court.

Okay. Let me try again with something. After President Trump announced your nomination to the Supreme Court, you discussed the judicial philosophy of the late Justice Antonin Scalia. Specifically, you stated, “His judicial philosophy is mine.” During oral arguments in the 2013 case, Shelby County v. Holder, Justice Scalia questioned the strong congressional support for reenactment of the Voting Rights Act. He argued that this support was not attributable to the fact that we need the Voting Rights Act. Rather, he stated that he believed Congress reenacted the bill due to a “Phenomenon that’s called perpetuation of racial entitlement.” What is your reading of this and your understanding of the history of the Voting Rights Act?

Well, when I said that Justice Scalia’s philosophy is mine too, I certainly didn’t mean to say that every sentence that came out of Justice Scalia’s mouth or every sentence that he wrote is one that I would agree with. When I said Justice Scalia’s philosophy is mine too, what I meant is that his jurisprudential approach to text as we’ve talked about originalism and textualism is the same that I would take. And I think as for the Voting Rights Act, I think that it was obviously a triumph in the civil rights movement.

Well, the question arises in my mind, of course, my view is that we always need this. This is a bulwark of our democracy. So need, I think, is something that may be somewhat subjective. Do you agree with that?

That need is subjective?

Yes. That I think we do need a voting rights act. And it’s subjective in that sense.

Well, I think, Senator Feinstein, the question of how the coverage formula is calculated, and the Voting Rights Act, and the contours of the Voting Rights Act, and whether Shelby County was rightly decided or not, are all questions on which I can’t give an answer because Shelby County has obviously been controversial. It’s likely to be re-litigated. It could come up before me on the court.

Well, let me give you … I think this is really important because it shows the basic philosophical bent of an individual. For me, the Voting Rights Act is extremely important. And it defines our election system to a great extent. It’s hard for me to understand that anyone would want to do away with it. What is your position in that regard?

As I understand Shelby County, it said that the coverage formula was outdated from the 1960s for subjecting the particular states requiring them to get pre-clearance. It’s my understanding, and I haven’t looked at the case in a while, that everything else about the Voting Rights Act remained intact, including its prohibitions on discrimination in elections. It was just the coverage formula which decided which states were subject to pre-clearance.

Well, let me ask you this question. And this is a hard one. Do you agree with Justice Scalia’s assertion that the Voting Rights Act is a “perpetuation of racial entitlement”?

Senator Feinstein, I don’t obviously know what Justice Scalia was thinking when he said that. And any characterization of the Voting Rights Act or a statement like that is simply really not something I can opine on. Because that’s tied in, I would think, with the Shelby County questions.

Well, can you opine, I’m not asking for formal opinion, but would you believe that it’s a perpetuation of racial entitlement?

Well, Senator Feinstein, I think that goes to the question of whether the coverage formula was outdated and needed to be updated from the 1960s or not. I take that to be the thrust of the disagreement in Shelby County and the position that Justice Scalia was taking. So again, I can’t express a view on Shelby County and whether the majority of dissent had the better of the argument.

Okay. Let me move on to workers rights and age discrimination. In a 2019 case, Kleber v. CareFusion corporation, you joined a majority of the Seventh Circuit judges in holding that age discrimination and employment does not protect job applicants against employment practices that have a disproportionately harmful impact on older applicants. The opinion you joined, as I understand it, dismissed a claim brought by a 58-year-old lawyer who was passed over for a job that was offered to a 29-year-old applicant with less experience. I think I’m concerned by the implications of the decision. According to AARP, approximately 35% of the United States population is now 50 years or older. Almost 29% of households are headed by someone near or past retirement age who have no savings or pension. According to the EEOC, study after study has shown age discrimination, “remains a significant barrier for older workers”, and older applicants are more frequently denied job interviews than middle age applicants. Additionally, older and middle aged women are subjected to more age discrimination than men.

The EEOC has found that the Great Recession during President Bush’s administration, “forced many older workers to revive their retirement plans to work longer to recoup drained retirement accounts and lost savings.” So here’s the question because I think it’s going to be an increasing problem for the court. What do you understand to be the purpose of the aged discrimination in employment at?

Well, in Kleber versus CareFusion, I joined a majority of the en banc court, so that was a case that we heard as a full court. And the question is whether the prohibition on age discrimination covered applicants or only employees. And the statute said employees and so an applicant isn’t an employee. So the majority said that the statute by its terms didn’t cover the conduct. But I think that’s an instance. I talked yesterday quite a bit about whose role it is to update statutes or extend them, and I think that’s an instance in which Congress could well address this problem by amending the statute to include applicants in it.

So where would you stand on the general subject matter?

Well, since I can’t impose the law of Amy, that would be up to the Congress to decide or many state legislatures have different anti-discrimination prohibitions that offer even more protection than some federal statutes?

Okay. Let’s talk for a moment. In 2013, you wrote, and this is a quote, “I tend to agree with those who say that a justice’s duty is to the Constitution, and that it’s thus more legitimate for her to enforce her best understanding of the Constitution, rather than a precedent she thinks clearly conflicts with it.” If you are presented with a case where your view of the Constitution conflicts with Supreme Court precedent, what will control your decision, your understanding of the Constitution or precedent?

Senator Feinstein, I’m really glad that you brought that up, because that quote was mentioned a lot yesterday, and I’m happy to have an opportunity to explain the context. That entire article, I mean, I think that there’s been some misunderstanding perhaps because that sentence, first of all, was citing a footnote to both an originalist scholar and a progressive constitutionalist. But the whole article was defending the Supreme Court’s current doctrine, which accords constitutional precedent, weaker stare decisis effect than say statutory precedent. And I mentioned that yesterday. Against claims that we should have no doctrine of stare decisis at all, and against claims that it should be absolute and completely tie the courts hands.

So I actually wasn’t arguing for any alteration to stare decisis doctrine. I was saying this is how it is, this is how the supreme court does it, and that’s right. And another couple of sentences in there, which I think might put my perspective in context, I said, “A new majority cannot impose its vision only with votes.” Now I’m paraphrasing myself. “It must be very sure that its interpretation of the Constitution is the right one, and that reliance, interests, et cetera, don’t counsel in favor of its overruling.” Paraphrased.

And then the next sentence was something to the effect of an uncertainty in that regard counsels in favor of preserving the status quo. So that sentence, if it’s just read alone makes it sound like I’m arguing for the overthrow of stare decisis in constitutional cases all together. But that wasn’t the thrust of the article, quite to the contrary.

Thank you. Thank you very much. And we all welcome the fact that your family’s here. It’s a beautiful family. Take care, everybody. Thanks, Mr. Chairman.

Thank you, Senator.

Mr. Chairman: (41:51)
Thank you very much. Senator Grassley. Don’t start the clock yet. He’s not ready. For five bucks, I won’t start the clock.

Senator John Cornyn: (42:16)
Judge. Welcome back.

Thank you, Senator.

I want to compliment you for doing a very good job answering our questions and all about your decision making process. You’ve been forthright, candid, thoughtful. You’ve demonstrated a tremendous command of and respect for the law and constitution. You’ve shown us that your judicial method is rigorous, but also fair and open-minded. Above all, it’s clear that you understand the appropriate role of a judge, just what we’re looking for. At least on this side of the aisle. An individual who will interpret the law, not one to make it. You are an outstanding candidate. A couple of things before I ask my questions.

First, Judge, many of my colleagues on the other side have tried to get you to tell us how you rule on a case. Whether you believe a case was correctly decided, or whether you will commit to uphold a specific law. As you’ve responded, it is not appropriate for you or any nominee in your position for any level of the judiciary to make promises or give hints on how you’d rule or what you think about a potential issue that may come up. Judicial independence from the legislative and executive branch, those are our political branches accountable to the people, is a bedrock principle of our constitutional system.

Justice Ginsburg said it best, “A judge is sworn to decide impartially and can offer no forecasts or hints because that would show disregard for a particular case.” She also said, “You can’t display disdain, or would display disdain for the entire judicial process.” You testified that you have not made any promises to anyone about how you might rule on a case that might come before you. That’s because you know that a judicial nominee should never promise votes in exchange for a president’s nomination or a senators support.

Moreover, we saw yesterday and to some extent Monday, Democrats strategy continues to be to use scare tactics, distortions and speculation. They’re framing you as a real threat to healthcare coverage, and especially protections for existing conditions. This is all a charade. Just because of your comment, I believe just from one law review article you wrote critiquing Chief Justice Robert’s reasoning. So it’s time to get real. This is all just a distraction. This is what we saw Monday and Tuesday. Democrats want to distract from the fact that they don’t really care about Obamacare. You heard that since Democrats started …

-Obama care. You heard that since Democrats started their Presidential Primaries, probably about two years ago. They want government-run Medicare for all. That’s what you heard in the Democrat Primary. The changes they seek to the ACA move America closer to a single-payer system where the government provides or subsidizes healthcare for all Americans, which we know eventually leads to government rationing of healthcare. Democrats want to distract from the fact that they just filibustered a COVID Relief Bill that would have protected pre-existing conditions. Next Monday we’ll see if they’ll vote for a COVID Recovery Bill that Leader McConnell has scheduled for a vote next week.

Democrats want to distract from the fact that Republicans, yes, Republicans have introduced bills to protect Americans with preexisting conditions and to bring down drug prices. And if we act, they don’t have to worry about you doing away with pre-existing conditions in some future case down the road. In fact, given the opportunity to advance bi-partisan Prescription Drug Pricing Reduction Act that’s the Grassley-Wyden Bill, democrats at Schumer’s command walked away because they wanted an election year issue. Republicans passed and signed into law bills to end pharmacy gag clauses and to end abusive drug tactics that prevent lower cost generic drugs from coming to market.

Democrats want to distract from the fact that President Trump and the administration have taken steps to help lower healthcare costs for Americans, including finalizing a rule to allow the importation of prescription drugs from Canada and proposing a rule to facilitate the purchase of affordable insulin and epi pen for lower income Americans. The president has signed an executive order to end surprise billing. Further, I and other Republicans have been working with the administration to increase transparency in drug prices to step up enforcement of anti-competitive activity and prosecution of bad actors in the healthcare industry, and to improve and expedite regulatory approval of drugs to combat COVID and other diseases.

Here is the bottom line of what we’ve all heard Monday and Tuesday. The Democrats cry foul over anything that may help Americans if it doesn’t advance their agenda for Medicare for all. And the American people deserve to be reminded of this hearing what it’s all about. It’s all about your qualifications to be on the Supreme Court. It’s not about healthcare advocacy.

Finally, judge, democrats want to distract from the fact that you’re eminently qualified for this position you’ve been nominated for. And they don’t like it that you know that the place of the courts is not to rewrite laws as you might see fit there.

Here’s the bottom line. I’ve asked you yesterday if it’s your agenda to repeal the Affordable Care Act. You said, “Absolutely not.” You said you’ve never made a commitment to anyone on the Affordable Care Act or on any matter. You’ve never been asked to make such a commitment and you made very clear you would never make such a commandment.

Mr. Chairman, I want to put some letters in the record from state legislative leaders supporting this nominee.

Mr. Graham: (50:35)
Without objection.

Now, you won’t get away with asking some questions on some things that I am very interested in. I’d like to discuss a law that I brought up with you when we talked for a short period of time one-on-one. We didn’t discuss it at that time. The False Claims Act. In 1986 we passed legislation that I drafted to make False Claims Act an effective tool to combat fraud against federal programs. This law enlisted the help of private citizens to enforce the False Claims Act through key Tam lawsuits.

In 2000 and the Supreme court deemed the false claims qui tam provisions constitutional. As you know, the False Claims Act has emerged as the government’s primary weapon against fraud. Since we restored the law in 1986, false claims actions have recovered $68 billion of taxpayer’s money fraudulently taken with $50 billion coming from whistleblower initiated actions.

Congress has remained vigilant to protect the False Claims Act from attempts to weaken it in the courts. Have you ever written or spoken publicly about the constitutionality of qui tam or any other provisions of the False Claims Act? And if so, what were the circumstances or the context?

Senator Grassley, I don’t recall ever speaking about the False Claims Act or the constitutionality of the qui tam provisions or any other part of the Act. So I can’t think of a time when I have.

Do you have any preconceived ideas about the False Claims Act or Whistleblower Protection Act that would impact your ability and impartially decide any cases involving those issues?

Mr. Graham: (52:34)
I do not. Any case involving that actually I would approach with an open mind as with any other.

Some opponents of the False Claims Act argue that qui tam provisions are unconstitutional under Article two and three. Are you familiar with these legal arguments? And if so, do you have an opinion on them?

Mr. Graham: (52:53)
Are you talking about the qui tam challenges?

Yeah, yeah.

Well, those aren’t ones that I can express an opinion on because as you say, they’ve been up before the court.

Another interest of mine that I probably at 87 years of age won’t live long enough to see done, but I’ve discussed cameras in the courtroom and introduced legislation on that over the last 15 years. It’s not a very popular subject. Judge SWuder joked that he’d have to roll over in his dead body before they’d put cameras on the Supreme Court. While I can respect that point of view, I totally disagree.

Many of us believe that allowing cameras in the courtroom would open the courts to the public and bring about a better understanding of the judiciary. For many years, that bill that I’ve introduced has been called the Sunshine in the Courtroom Act. A bill to give judges the discretion to allow media coverage of federal court proceedings. I’m also a co-sponsor of Senator Durbin’s bill to allow cameras in the spring court.

I understand that the Seventh Circuit Court of Appeals where you currently serve adopted procedures to allow requests for video recording of oral arguments as well as public release of the recordings.

That’s correct.

Has your court had any problems with these procedures? What are your views on allowing cameras in the courtroom? If confirmed, would you keep an open mind about allowing cameras in the Supreme Court?

I would certainly keep an open mind about allowing cameras in the Supreme Court.

I always ask people, district, circuit or Supreme Court, this question about international law. I’d like to get your views on how and when you would apply international law to your decision making process. Is it ever appropriate to cite international law when interpreting the U.S. Constitution?

Well, I would never want to say never because it’s certainly possible generally speaking. So, it’s been applied in the issues with which foreign law has been applied, and there’s a debate about it, are when we’re trying, or when the court is trying or a lower court is trying to identify what is the nature of a right that’s part of the tradition of the people or that the people like what would the people view? And in my view, the United States Constitution is a compact and it’s the fundamental law of the American people. And so I don’t think it would be controlled by the laws passed by other countries, because it reflects the fundamental commitments that we as an American people have made.

Thank you very much. I reserve my time.

Mr. Graham: (55:45)
Senator Durbin.

Speaker 2: (55:48)
No. Senator Leahy’s on.

Mr. Graham: (55:48)
Oh, I’m sorry. I apologize, Senator Leahy. I apologize. Out of sight out of mind. I apologize.

Patrick Leahy: (55:57)
Okay. Thank you. Can you hear me? Can you hear me all right?

Mr. Graham: (56:02)
Yes, sir. Loud and clear.

Incidentally, for those who are watching and think that we may be polarized and things, I listened to what Senator Grassley said about cameras in the courtroom and of course I agree with him on that. And he knows I have supported that. I’ve also joined with him in appeal of the False Claim Act improvements. There are many areas in our committee where our senators have worked together.

And I would ask, Mr. Chairman probably could unanimous consent that a letter from 10 former federal judges who were opposed to the process of this nomination, along with letters of opposition to the nomination from People for the American Way and 208 women lawyers, that they be inserted in the record.

Mr. Graham: (57:09)
Without objection.

You have to assume that somebody is going to hand you those letters. I can’t quite reach from my room here.

Now, Judge Barrett, it was good to see you again. Again, I commend your children. I’m sure this is fascinating, but I’m sure it’s a long day. I’m sure you probably felt the same way, but this is part of democracy and it’s important that we have these questions.

Now we’re being told that no one could possibly know how you would rule in the latest Republican led case to overturn the Affordable Care Act. But what we do know is that you criticized Chief Justice Roberts opinion in NFIB v. Sebelius. You stated that “Roberts pushed ACA beyond is plausible meaning to save the statute.” And then you praised the dissent in King versus Burwell. So it seems every time you went in on legality of the statute, you come to one conclusion. The Affordable Care Act was unconstitutional.

Now, over the past two weeks, you provided this committee, all of us with some 1800 pages of your writings and speeches for us to review, and I have. I may have missed something in that, but did you ever write or speak out in defense of the ACA?

Senator Leahy, I just wanted to make one correction. King versus Burwell wasn’t a case about whether the Affordable Care Act was constitutional or not. That one was purely a question of statutory interpretation. So just to make clear about that. I would say-

But you did praise, but you did praise the dissent? [crosstalk 00:59:07].

I did. In a radio interview I said that I thought the descent had the better of the statutory interpretation argument. I have a couple of things I guess that maybe might help shed some light on this question. One is that, of course, in both of those contexts, I was speaking as an academic. And as I mentioned yesterday, an academic serves a very different function than a judge. So an academic doesn’t go through the judicial process, doesn’t hear the case or controversy, have the litigants and the briefs and the consultation with colleagues, the writing of any-

Judge, we, we all understand that, but that’s not my question. My question was, did you ever write or speak out in defense of the ACA whether as academic or as a member of the judiciary? That’s a pretty simple-

Amy Coney Barrett: (01:00:02)
No.

Patrick Leahy: (01:00:02)
-question. Could be yes or no.

No. I’ve never had occasion to speak on the policy question.

Thank you. And so every time you’ve weighed in on it, you said the law is unconstitutional.

No. Sorry. I thought you were done.

Well, and the courts of course have to under- [inaudible 01:00:29] severability, standing, constitutionality, and you haven’t written on severability of the ACA, have you?

I have not.

Thank you. And now here’s a quote that I’m sure you’re familiar with in preparing for this. It has been used in the last few days. Quote is: “Throwing out pre-clearance when it is work, is continuing to work to stop discriminatory changes, is like throwing away your umbrella in a rainstorm because you’re not getting wet.” Have you heard that quote before?

I believe that’s from the dissent in Shelby County.

By Justice Ginsburg. Is that correct?

I believe so.

Actually, it is. She was talking about and worrying about striking down Section Five of the Voting Rights Act. Now Shelby County, it was almost like immediately after Shelby County came down, states started making changes. Twenty states enacted new restrictions on voting, and some of those restrictions have been horrendous. Do you know how many polling places have arbitrarily been closed across the country since the Shelby decision?

I do not know, Senator Leahy.

I’ll help you there. It’s at least 1600. Now, following the Shelby decision, do you know how many voters were purged from voting roles?

I do not know.

Roughly 16 million. That’s about 30 times the population of my state. African Americans with felonies are four times more likely to be disenfranchised than other Americans with felony convictions. Non-white voters are seven times more likely to wait in line for more than an hour. They by far wait longer in line than white voters. I mention this because this is a picture from Dekalb County, Georgia. Look at the lines. African Americans make up the majority. Look at that line. I suspect neither you nor I have never had to wait in line like that to vote. In fact, the press reported that today those lions could be 10 hours long.

People talked about, well, we’re giving racial entitlement. This is not entitlement for any Americans. This is not entitlement. This is turning our back on democracy. This is say you can’t vote or we’re going to make it so difficult for you to vote, you can’t. Harris County in Texas, which has a population may times out of my state has one early voting spot. People have to drive for hours and wait in line for hours to get there. Would you accept the fact or would you acknowledge the fact that communities of color disproportionately face restrictions and obstacles when they are casting their ballots?

Senator, I wasn’t aware of the statistics that you were citing to me. If it became relevant in any case, that was litigated before me and was presented to me, I would of course have an open mind about it.

Well, I talk about this because I know you have spoken much like former Justice Scalia who was a friend of mine. But I disagreed with him on many things. He talked about racial entitlement. It’s not racial entitlement when blacks have to stand in line for 10 hours to vote. And Justice Ginsburg, of course dissented. She knew what the consequences would be. I only mentioned that because it’s okay for a judge not to close his or her eyes to reality.

Now, I asked you last week what a Justice [present 01:05:45] would do if a president or even a senator did not follow a Supreme Court decision. You declined. You said the question may come before you. I then asked if the Supreme Court would have the final word. You stated the Supreme Court would have the final word as far as the lower courts are concerned. And that surprised me and it concerned me. And I’ll tell you why.

I asked Justice Gorsuch and I asked Justice Kavanaugh those questions. I asked them what happens then. And they made it clear that a president can not refuse to comply with a court order and the Supreme Court’s word is the final word on that matter. So Justice Gorsuch and Justice Kavanaugh said. So I would ask you this. Do you agree that a president must follow a court order? And if the Supreme Court’s word is final or is it Supreme, court’s only final as far as the lower courts are concerned?

Senator Leahy, I’m glad to have the opportunity to clarify from our conversation. First, I know that both Justices Gorsuch and Kavanaugh said that no man is above the law. And I agree with that. But I conversed with Senator Lee yesterday about Federalist 78, which says that courts have neither force nor will. In other words, we can’t do anything to enforce our own judgments. And so what I meant in the conversation with you is that as a matter of law, the Supreme Court may have the final word, but the Supreme Court lacks control over what happens after that. The Supreme Court and any federal court has no power, no force, and no will. So it relies on the other branches to react to its judgements accordingly.

I remember as a young law student having lunch, our honor society at Georgetown was able to have lunch with members of the Supreme Court. I sat with Justice Hugo Black. He told me what happened with Brown versus Board of Education. And the court knew that was going to be a very, very tough case. And what did they do? They waited until they had a unanimous opinion because they knew that the president would have to, and the Congress would have to enforce their law. So, let me ask you this. Of course, the Supreme Court has no army. They didn’t have no force, but they do have the force of law. And is a president who refuses to comply with a court order a threat to our constitutional system of checks and balances?

Senator Leahy, I think the example of Brown is a perfect one in this instance, because the Supreme Court in Brown of course held that segregation violated the Equal Protection Clause. That was the law, but as you know, there was resistance to that decision. And so it wasn’t until the National Guard came in and forced. Governor Falba-

National Guard came in and forced Governor Faubus to allow desegregation, that it could happen, because the Supreme Court couldn’t do so itself. And in Cooper versus-

I understand that. But they made the order. If a president refused to follow what they had said, could that be a threat to our constitutional form of government?

Well, as I said, the Supreme Court can’t control whether or not the president obeys. Abraham Lincoln once disobeyed an order during the Civil War of a circuit court. So a court can pronounce the law and issue a judgment, but it lacks control over how the political branches respond to it.

Then, let me ask you a specific that has come up. President Trump claims he has a absolute right to pardon himself. Now, for 200 years, the Supreme Court has recognized common law principle, that nobody can be a judge in their own case. I had to go way back and reread Calder versus Bull to see that. But would you agree, first, that nobody is above the law? Not the president, not you, not me. Is that correct?

I agree no one is above the law.

And does a president have an absolute right to pardon himself for a crime? We heard this question after President Nixon’s impeachment?

Senator Leahy, so far as I know, that question has never been litigated. That question has never arisen. That question may or may not arise, but it’s one that calls for legal analysis of what the scope of the pardon power is. So because it would be opining on an open question when I haven’t gone through the judicial process to decide it, it’s not one on which I can offer a view.

Okay. But you were going to say that no person, not you, not me, not a president, is above the law. I find your answer somewhat incompatible, but those are your answers. You have a right to say what you want. Now, you’re an originalist. Can you explain why the framers includes the foreign and domestic emoluments clause in the Constitution?

I think I could speak generally to what is the well-accepted view, that the foreign emoluments clause… It’s plain from that test that it’s designed to prevent foreign influence in government affairs.

It’s sort of the anti-corruption clause of the Constitution. Isn’t it?

I’m sorry. Could you repeat that question?

It is sort of what you would say… It’s the anti-corruption clause in the Constitution.

I don’t know if I would characterize it as an anti-corruption clause. I think I would characterize it just as I did. Which, one, from it’s very text, you can see is designed to prevent foreign countries from having influence.

I was thinking about, at the Constitutional convention, Governor Edmund Randolph said the clause was thought proper in order to exclude corruption and foreign influence, prohibit anyone in office from receiving or holding any emoluments from foreign states. And now we find that 200 companies and foreign governments have patronized Trump properties. At the same time, they were getting benefits from him and the administration. First two years of his presidency, he earned $73 million for his properties abroad. And an originalist, as you are, do you think these companies or foreign governments would have fallen within the framers’ zone of concern in writing the emolument clause?

Senator, the emoluments clause… It’s under litigation. There was a fourth circuit case that recently involved this question. So as a matter that’s being litigated, it’s very clear that that would be one that I can’t express an opinion on, because it could come before me.

I’ve found it interesting what you’ve written about it stare decisis and precedent. And it seems that you’re willing to depart from it. And that’s, as a justice, yeah, I suppose you could do what you want. But in the June medical services, Chief Justice Roberts joined the majority, struck down a Louisiana law restricting access to reproductive services, even though he had dissented in a previous case, striking down a very similar Texas law. And he said the legal doctrine, the stare decisis, requires this absent special circumstances to treat cases alike. So I having been on the losing side on the first one, he took that position for that case. Do you agree that he demonstrated a commitment to stare decisis in this case?

Well, Senator, no justice that I’m aware of, throughout history, has ever maintained the position that overruling a case is never appropriate. As you probably know, there’s a Supreme Court case that said that states could criminalize sexual conduct between same-sex couples. And Lawrence versus Texas overruled that case. Plessy versus Ferguson was precedent, and Brown versus the Board of Education overruled it. So the Supreme Court has always said that in some cases, overruling precedent is the right course for the Court to take. But that it’s not done willy nilly-

I would urge you to read what Chief Justice Roberts said at the opening of the African American museum in the Smithsonian about following precedent. I realize my time is up. I will submit a question to you, because I wonder what restrictions you see in a president’s authority under executive order 12333 to conduct surveillance activities that haven’t been authorized by Congress. I ask that because Senator Lee, and I, and others have done a lot of legislation on surveillance. And now we question whether that’s being ignored. So I hope you take it as a serious question and answer it for the committee.

Thank you, Senator Leahy.

Senator Lindsey Graham: (01:16:34)
Thank you. We’ll make sure that it happens, Senator Leahy. Senator Cornyn.

Senator John Cornyn: (01:16:38)
Mr. Chairman, I’d ask you to unanimous consent that three letters I have it here in my hand, be made part of the record, please.

Without objection.

Thank you. Good morning, judge.

Good morning, Senator.

I’d like to wax philosophical with you for a few minutes, and you don’t need your notepad. I just think there’s been so much discussion about the role of judges and the role of the political branches. I think maybe it’s worth going back to first principles. And to me, the most important first principle is in the Declaration of Independence, where it says, “We hold these truths to be self-evident that all men are created equal, that they’re endowed by their creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness. That to secure these rights, governments are instituted among men.” And here’s the most important part I want to emphasize, “Deriving their just powers from the consent of the governed.” Now you and I talked a little bit about consent of the governed as being the very foundation of the legitimacy of government action. Do you agree with that?

I do agree with that.

And does that inform your philosophy when it comes to the appropriate role of judges and the political branches, like the Congress?

Yes, it does.

I had the great privilege of serving on the state court bench for 13 years. And so when I came to Congress, I’d never served in the legislature before. And so it was quite a eye-opening experience for me. For example, after one vote on the Senate floor, after the vote was over, one senator got to the microphone. He said, “Now for a little legislative history.” That was kind of shocking to me, but you understand where I’m getting at. And one reason I appreciate your approach and Justice Scalia’s approach to statutory interpretation and emphasis on the text, rather than legislative history… This is a way for somebody who lost the vote to come in and try to then tilt the scales of justice in their favor by adding sort of a ex parte legislative history. And then imagine my shock when I served, as I do now, on the finance committee. When we mark up legislation in the finance committee, we don’t actually get to look at legislative text.

It’s kind of surreal. They called it a notional markup. In other words, we end up voting on sort of a notion or concept, and then somebody in the Ledge Counsel’s office writes up the text. Very strange. And then there’s this issue of… I know in the judiciary and in the legal profession, generally, there’s been a big movement toward plain language, so people can understand clearly. You have to unlearn some of the lessons you learned in law school, particularly writing on law reviews and the like, where you are seemingly rewarded for this really obtuse, impenetrable language. And of course, where you use Latin phrases and things like that. But the plain language movement in the legal profession strikes me as a very important movement. And I yearn for those days when perhaps Congress can embrace that, so we can speak more clearly, so more people can understand, and not delegate our legislative responsibilities to staff.

But I also was struck by the fact that one of the reasons why cases get litigated is because of the failure of the Congress to build consensus for legislation. And to me, the Affordable Care Act is one example of that. When either side pushes through a partisan piece of legislation, it’s not realistic to expect that the fight will be over. It’ll just move to a different form. It’ll move to the courts. That’s not what happened on things like Medicare and Social Security. There was built a broad bipartisan consensus. In other words, members of Congress actually did the hard work to find that consensus, so that they didn’t have to hand it off to the judiciary. And unfortunately, I think we’ve seen a tendency in recent years to do exactly that, where Congress has abdicated its responsibilities, well, figuratively, let me say, pull the pin on a hand grenade. And then hand it to the judiciary and say, “You figure it out.”

And maybe, just maybe, that’s one reason why these judicial confirmation hearings have become so contentious, because people actually see the judiciary as the ultimate policymaker. And as was quoted, I think Justice Scalia talking about the value judgements of judges versus those of the citizenry or elected representatives. And he said that, “There’s no reason to think that the value judgements of the judiciary are any better than those of the citizens, in whom resides the ultimate legitimacy and political power.” And of course the most fundamental difference, I guess, between the job that you currently hold and the one that you will hold on the Supreme Court, is the notion of accountability. As a judge, you serve for lifetime tenure. Correct?

Correct.

You don’t have to stand for election.

No.

You don’t have to raise money.

No.

You don’t have to consult polls.

No.

Focus groups?

No.

Well, how in the world, do you decide a case if you don’t consult with public opinion, polls, focus groups or the like?

Well, the reason we have life tenure, as federal judges, is to be insulated from the pressure that such things like focus groups, or polls, or public opinion, the pressure that it might apply for a court to decide a case a particular way or the other. That’s why we decide it according to the text.

Well, and there are various rules of the road, so to speak, for how the judiciary approaches cases. Right?

Correct.

In other words, perhaps the most fundamental difference is that, rather than making broad policy pronouncements, you decide cases. Correct?

That is correct.

And in fact, I’m struck by a New York University Law Review article by Justice Ginsburg. And I forgot what year it is, but where she talks about Roe vs. Wade. And she talks about what she called the breathtaking decision versus the Court’s more cautious dispositions. She said, “Suppose the Court had stopped after rightly declaring unconstitutional, a portion of the law, and had not gone on as it did in a road of fashion, a regime blanketing the subject, a set of rules that displaced virtually every state law that enforced. Would there have been a 20 year controversy? We have witnessed, reflected most recently in the Supreme Court splinter decision in Planned Parenthood versus Casey, might it have served to reduce rather than to fuel controversy?” Well, I think what she’s saying is when the courts step in, and basically take over, by stating a constitutional rule, it really prevents the very people who are elected by voters from making policy. Correct?

Correct.

And there are a number of other things, other than the requirement of a case or controversy, that keep the judiciary in its appropriate lane. Things like standing requirement.

Yes.

What is standing?

Standing means that you can’t just come to court, say, because you dislike Senator Graham’s fetal pain act. You can’t just walk into the door of the courthouse and say, “I don’t like that act, and I think it’s unconstitutional.” Standing means that you actually have to have suffered, what the law calls, a concrete injury. So it has to have affected you in some way. So that means that they are real litigants with a live controversy before the court. People can’t come to court to air policy disagreements only.

And then there’s a requirement of ripeness. What is ripeness?

Ripeness means that there has to be a live controversy. You can’t run to the courthouse door and file a lawsuit until it’s ripe. Which means that the injury I was talking about, has actually come to fruition, come to pass.

And of course, by the time you see it on the circuit court, the case has already had to have been tried by a trial court. Correct?

That is correct.

And then there’s a record. Right?

Yes.

And what encompasses a record that the trial court prepares, that you review as an appellate judge?

Well, there’ll be factual parts of the record. So if there was a trial, there’ll be very lengthy transcript of that trial. A district court makes a number of legal rulings in the course of a case, so the court may have ruled on, say, a motion to dismiss, and whether the law gave the plaintiff a valid claim. The court may have ruled on a motion for summary judgment, which means that’s an evaluation of whether the plaintiff or the defendant could win the case without even going through a full trial because the law was clear enough. So there are many things along the way. There are evidentiary rulings, legal rulings, a factual record that develops. And in some instances, it’s quite long.

And as an appellate judge on the seventh circuit, you can’t go outside the record, can you?

You can’t. The record can’t be expanded on appeal.

And that’s true in the Supreme Court as well?

Yes.

And so all of these rules of the road, I’ll call them, things like the case or controversy requirement, ripeness, standing, being confined to a record that is then the sole focus of an appellate review… Are all those sort of indications of how the judicial decision-making process is different from the legislative process?

Yes. And it can take years for a case to wind itself through that process. So as opposed to policy makers, that don’t have to wait on real parties and real disputes, and the parties get to shape the case their way. They get to decide what legal issues they’re going to contest, and that narrows what the Court can do. So policymakers, if you had enough agreement to pass something, you could just do it in one day, just enact the law, enact the policy. And that is definitely not how judicial decision-making works.

Well. I know that you have followed the same rule as Justice Ginsburg in not expressing opinions on cases that might come before the Court. Is this another practical reason why you can’t predict how you will rule in the future? Because you don’t know what the facts of that case may be. You don’t know what the issues in controversy might be. So how in the world could you sit here, and basically tell us about what your policy will be, without knowing all of that?

I couldn’t. And I think when Justice Ginsburg said it would show disregard for the judicial process and even disregard for litigants, what she was getting at is that it would signal to litigants, listen, all the briefs and stuff you file in a case, that doesn’t really matter because judges just have a gut reaction. They know what they think, and this is all just going through the motions. But that’s not how the judicial process should work or does work.

There’s no reason to believe that a judge’s gut reaction is any better than any other American citizen’s reaction, is there?

No. And the judicial process… I described this a little bit yesterday. A judge needs to have an open mind every step of the way. So as I said, I’ve changed my mind at oral argument, even after reading the briefs. I’ve changed my mind at conference, after consulting with my colleagues. So if I were to just say how I thought I would resolve a case just because I saw the issue, it would be short-circuiting that whole process through which I should go and have an open mind and be open to persuasion.

Well, I don’t see any of the big blow ups or charts here today about individuals that were the subject of the stories that our Democratic friends were telling yesterday. Maybe we’ll see them later-

Speaker 3: (01:30:32)
Not right now.

But the idea that some case that you might decide in the future that you have not had a chance to go through this analysis of and predicting how you might rule in the case is that even possible?

It’s not possible because I don’t know whether my mind could be changed at some step along the way. And if I did it, I think I said yesterday I’d be kind of like a legal pundit just commenting on things in real time and I don’t think anyone wants judges to function that way. They want judges to go through the process, take things seriously, do a lot of research, do a lot of writing, keep an open mind.

Where in the Constitution does it authorize a judge to be a legal pundit and just make policy pronouncements separated from all of these requirements?

Well Article Three, prohibits it. And so far as Article Three, the court prohibits federal courts from issuing what are called advisory opinions and that means that when there’s no real case in front of you, no real case or controversy, then you can’t just offer an advisory opinion, that’s not the resolution of a case to express your view of the law.

So it’s not fair to suggest that by confirming you to this position, you’re somehow going to adversely impact the lives of these individuals?

Well, as I said yesterday, what I can say is that I have certainly no agenda, I’m not on a mission, I’m not hostile to the ACA at all. And if I were on the court and if a case involving the ACA came before me, I would approach it with an open mind, just like I do every case and go through the process that we’ve just discussed.

And again, referring back to what Justice Ginsburg said in this New York university law review article, if judges restrict themselves to deciding cases or controversies as opposed to making broad policy announcements and displacing legitimate dispute, debate, negotiation, and legislation, does that encourage more litigation and dissension or does it resolve it?

Well without commenting on what Justice Ginsburg said about Roe versus Wade in particular-

No, I’m not talking about that, I’m talking about generally speaking.

Just as a general matter, the case or controversy requirement and so far as it ties the court to the particular litigants and to the particular issue presented in the case. In fact, the Supreme Court has a rule that it will not consider questions outside of the question presented in the case, absent unusual circumstances and so that means that the court can’t reach out and decide other issues that might be in the case if it didn’t grant cert on them. So I think incremental decision making or court limiting itself to the issues actually presented is one way that the court tries to respect this constraint on its power that it’s only actually resolving the cases right in front of it.

Getting back to the Declaration of Independence and the source of governmental legitimacy, these arrangements are not made to benefit you or the courts or to benefit us, they’re to benefit the American people by making sure that they are the ones who are the source of political power. Do you hear that?

All provisions in the Constitution are there to benefit the people.

If the court rules on a statute, we can change the statute. But the court says something’s unconstitutional, you could amend the Constitution to change that ruling. The people could do that, right?

Yes, they could.

So the American people are the final word.

Yes.

Mr.President and Mr.Chairman.

Thank you, Senator Durbin.

Senator Durbin: (05:09)
Thanks Mr.Chairman. Judge Barrett, good to see you again.

Good morning.

Thank you. You’re making history. I wish the Senator from Idaho could hear this. You are the first nominee for a vacancy on the Supreme Court to be considered after July 1st of the election year. In fact, you’re the first nominee to ever be considered in the midst of an election. I don’t know if that has ever happened before, it certainly hasn’t in modern history. And the obvious question is why? What’s the hurry? Why couldn’t we wait till the end of November or December or even January after leaving a vacancy on the court for 10 months after Antonin Scalia’s passing? Well, because there is a political agenda here and whether you are privy to it, part of it, not withstanding, it has to do with the Affordable Care Act. November 10th is the absolute date they have to fill the vacancy, if the president and those who support him and those who support the Republican platform are going to keep their promise to end the Affordable Care Act, they need that ninth justice, that’s why it has to be hurried.

Unfortunately, that is the orange cloud over your nomination as it comes before us here in the Senate Judiciary Committee and it raises many questions. I’d like to confine my first part of these questions to what’s going on across America as we meet here today? There’s an election going on, people are trying to vote, and there are a lot of issues out there that are being debated and somewhat resolved or unresolved every single day. The president continues to lie about paper ballots saying that they’re fraudulent, people shouldn’t use them. There’s still long lines, unforgivably long lines for people who just want to exercise their right to vote. The govern who want to give their consent Senator Cornyn. There is a battle royal over the postal service and whether it’s going to be implicated in some effort to slow down or stop ballots from being delivered. One ballot collection box in Harris County, Texas, for more than four million people, one box? It’s pretty clear what’s going on here.

It’s an effort to make it difficult to vote. Even for those who are legally entitled. Historically the Republican Party is starting to losing a tactic of discouraging voters. We seen this making it more difficult, reducing the period of time that people can vote early, requiring IDs even if there’s no evidence of fraud, purging the roles of names, this is all going on so I want to confine my questions at the outset here on the question of voting. Let me start with what many people read this morning and I did, which was a summary of one of the exchanges yesterday here in the committee. Senator Feinstein who said, “President Trump made claims of voter fraud and suggested he wanted to delay the upcoming election.” Senator Feinstein then asked you, “Does the Constitution give the president of the United States the authority…” Listen closely to what she asked you, “To unilaterally delay a general election under any circumstances does federal law?”

Your answer, “Well Senator, if that question ever came before me, I would need to hear arguments from the litigants, read briefs, and consult my law clerks. Talk to my colleagues, go through the opinion writing process.” You went on to say, you didn’t want to give off the cuff answers like a pundit, but rather approach matters with an open mind. Is that still your response?

Senator I’ve given that response to every hypothetical that I’ve been asked in the hearings and as I said yesterday, I do that regardless whether it’s easy or hard, I don’t do that to try to… Whether the question I mean would be easier or hard, I don’t try to do that to signal it, but I do that because it would be inappropriate for me to make a comment and I don’t think I’ve answered any legal hypotheticals in keeping with the Justice Ginsburg rule.

So I guess what troubles me is this, you style yourself an originalist, textualist, specialist, whatever the term is. Which means you go right to the words and try to understand the words in their original meaning. So if I changed Senator Feinstein’s question and didn’t ask you whether the president has the authority to unilaterally delay a general election, asked you instead, does the president have the authority to unilaterally deny the right to vote to any person based on their race? What would your answer be?

Well Senator, obviously there are many laws in effect, including the Equal Protection Clause, which prohibits discrimination on the basis of race, including the 15th amendment, which protects the right to vote against discrimination based on race. So there’s a principle and constitutional law called external constraints and even if one evaluates what the authority a branch might have to act there external constraints that press in from other parts of the constitution. Here, it would be the 14th and 15th amendments.

Well, of course it would. The 15th amendment, the right of citizens in the United States to vote shall not be denied or abridged by the United States or any state on account of race. For an originalist and a textualist that is clear text as I see it, but when asked whether or not the president has any authority to unilaterally deny that right to vote for a person based on race or even gender, are you saying you can’t answer that question?

Senator, I just referenced the 14th and 15th amendments. The same one that you just repeated back to me that do prohibit discrimination on the basis of race and voting. So as I said, I don’t know how else I can say it. The Constitution contains provisions that prohibit discrimination on the basis of race and voting.

But whether a president can unilaterally deny, you’re not going to answer yes or no?

Well Senator, you’ve asked a couple of different questions about what the president might be able to unilaterally do and I think that I really can’t say anything more than I’m not going to answer hypotheticals.

It strains originalism. If the clear wording of the Constitution establishes a right and you will not acknowledge it.

Well Senator, it would strain the cannons of conduct which don’t permit me to offer off the cuff reactions or any opinions outside of the judicial decision-making process. It would strand Article Three, which prevents me from deciding legal issues outside the context of cases and controversies, and as Justice Ginsburg said, it would display disregard for the whole judicial process.

So then let’s take it to the case we’ve discussed before [inaudible 00:00:11:56].

Okay.

Your 37 page dissent in this case.

Mm-hmm.

And yesterday the Junior Senator from Missouri in attempt to rehabilitate the witness asked you, “You never say that the right to vote is somewhat secondary or less than any other right. Is that fair to say?” And you answered, “Yes, that is fair to say. I never said that.” I have read and re-read this, I’m not ready for a question on the final, but I read and re-read your dissent on this. I’d like to read to you what you wrote on this very question asked by the Senator from Missouri. In some… I think we need to establish what this case is about for those who may not know or remember. Ricky [Cantor 00:00:12:42], Ricky Kantor was a con man, lived in Wisconsin. He manufactured some kind of shoe insert, a pad, and tried to sell it to people who had diabetes or some foot problems. He wanted Medicare to say that it was approved, they didn’t. He sold it anyway and made that representation.

When it was all over, it came crashing around him, he cheated Medicare out of $375,000, he was found guilty of a count of mail fraud, paid $300,000 in penalties and fines, he paid out $27 million in a civil settlement, and then spent a year in federal prison. So this was not some run of the mill miscreant, this was a fellow who was a con artist. He came to the federal courts and said, “This is unfair. I’ve served my year in prison. Now I want to buy a gun.” And the law says, I can’t buy a gun if I’m guilty of a felony. And the court said, “Sorry Ricky, you can’t buy a gun because you are guilty of a felony.” Even the Heller decision, Justice Scalia said that felonies and mental illness could continue to disqualify a person from buying a gun in this country. Two out of three judges who heard this case said, “That’s right, that’s the law, sorry Ricky, no AK-47 for your birthday.”

But then you took a look at it and reached the opposite conclusion and did extensive research and delving into history about whether or not violent felonies should be distinguished from regular felonies and you concluded that you believed that a person who has just been found guilty or convicted of a felony should not be disqualified from their second amendment rights. That should be confined to those who were dangerous, guilty of a violent felony. Here’s what you said to go to the question that was asked by the Senator from Missouri, here are your words, “In some, the available evidence suggests that the right to arms differs from rights that depend on civic virtue for enjoyment. The second amendment confers an individual right intimately connected with the natural right of self-defense and not limited to civic participation. By the very terms of the civic rights argument then the right to arms would have been treated differently than things like the right to vote or sit on juries.”

So here’s what it boils down to, after the decision, after Scalia’s statement, you concluded that any felony can take away your right to vote, but only a violent felony can take away your right to purchase an AK-47.

Senator with respect, that’s distorting my position, what I said in that case, which is what Heller said, and which is conventional in all discussions of this to my knowledge is that the right to vote is fundamental. However, it is an individual fundamental right that we possess, but we possess it as part of our civic responsibility for the common good. The same thing is true for example of jury service. Whereas individual rights, and this is again, a distinction that’s drawn in case law, individual rights benefit more the individual and the entire dispute and holler was that the majority thought that the second amendment was an individual right and the dissent thought it was one that was a civic right. That was a right that people possessed, but they possessed for the benefit of society by participation in the militia and it is a distortion of the case to say that I ever said that voting is a second class right, that’s simply not what that passage means.

But the very terms of the civic rights argument then, the right to arms would have been treated differently than rights like the right to vote. Let’s get down to the bottom line here, Hillard did establish the individual right. When you finished with your dissent here’s what it came down to say, if you are guilty of a felony that is not violent, you can lose your right to vote, but you can’t lose your right to buy a gun. Am I wrong?

Senator Kantor had nothing to do with the right to vote. The point that I was making in that passage, the 14th amendment actually expressly allows for states to deprive felons of the right to vote and my point was that there was no similar language in the second amendment. I don’t have an opinion and have never expressed one about the scope of legislature’s authority to take away felon voting rights. What I said is that there is a history of such provisions and state constitutions and in the federal constitution, but I did not intend and if my words communicated that it was a miscommunication, I have never denigrated the right to vote.

And I think it was at best a serious miscommunication. I’d like to read to you in this very room in 2005, an exchange took place between Senator Kennedy and Judge Roberts. Senator Kennedy said, “Let’s start with the Voting Rights Act. Most Americans think that the right to vote is among the most important tools that they have to participate in our democracy. You do agree, don’t you Judge Roberts that the right to vote is a fundamental constitutional right?” Judge Robert says, “It is preservative, I think of all other rights. Without access to the ballot box people are not in the position to protect any other rights that are important to them. And so I think it’s one, as you said, the most precious rights we have as Americans.” Do you understand why I read your lengthy dissent here where somehow or another you could say to Ricky Candor, “Sorry you can’t vote anymore, but buy any guns you wish, we treat those rights differently.” Can you see why that would be troubling based on what Justice Robert said?

I don’t actually Senator Durbin because I’ve expressed they testified here that I think voting is a fundamental right and I didn’t say to the contrary in that dissent.

Well, I read it otherwise and I read it and re-read it so I won’t get that right on your final, but I will tell you from the way I see your language it is explicit. You have two categories of rights, one that’s individual and another that is based on collective action. As in juries, as in voting as a group in the populace, and you’ve made a distinction there that I think is hard to understand, difficult to explain, and inconsistent with what Justice Roberts told us at this point. I’d like to move on to another… Leave it open, I want you to have the last word on this please.

No, I’m happy to answer whatever questions you have.

Well, let me go to the poster behind me and introduce you to another family. This week I shared two stories of what’s at stake with this, your nomination, ahead of the November 10th oral arguments in California versus Texas, which will decide the future of the Affordable Care Act. This is a family, included in it is Jared Ray of Buffalo Grove, Illinois. He’s on the right. Earlier this year, Jared 20 years old began experiencing serious headaches, after a month of suffering, he asked his father Mike to take him to the emergency room. A CT scan revealed a mass on Jared’s brain, immediately transported to Evanston Hospital for surgery. Weeks later they learned the devastating news. Jared was diagnosed with Medulloblastoma, the cancerous brain tumor on the cerebellum. I’m sorry to say, it’s one we’re familiar with here in the Senate, Senator Kaine suffered from a similar situation. Post-surgery Jared began an aggressive six week proton radiation protocol currently on first round of eight chemotherapy treatments at Lurie Children’s in Chicago.

His treatment costs have now added up to $700,000 and continue. Fortunately, the ACA permits Jared to remain covered by his mom’s health insurance until the age of 26. That law also ensures no lifetime limits on her policy so that they can continue to give Jared the treatment that he wanted and needs. When sharing her son’s story his mom Mary said, “Any parent would be shocked and terrified in this situation. If the ACA is abolished and if my employer likes not to offer coverage for dependents up until age 26, that puts Jared at risk of being uninsured and uninsurable, because he will clearly have a preexisting condition.” Jared’s father added, “Jared would not have access to this type of care if it were not for the Affordable Care Act, because he wouldn’t be insured, it’s been a huge benefit.”

Judge last week in your prepared testimony you said quote, “The policy decisions and value judgments of government must be made by political branches elected by an accountable to the people. The public should not expect courts to do so and the courts should not try. Well thankfully judge, the political branches elected by the people past and then acted the Affordable Care Act. The problem is now that the Republicans are doing everything they can to take away this protection and they can’t do it through elected officials. They tried over and over and over in the House and in the Senate.” And I mentioned Senator McCain earlier in this statement, I’ll never forget it and neither will any of us who were on the floor that night when he walked through those doors at 1:30 AM voting no and saving health insurance for 23 million Americans and protections for a hundred million or more. They couldn’t repeal the Affordable Act in Congress now they’ve taken it to the Supreme Court.

It isn’t a casual decision, this administration decided that instead of defending an existing law they would attack an existing law along with the Republican Attorneys General who have gathered for this purpose. They’ve got a reason to believe they are going to be successful. As I mentioned yesterday, right-wing judicial activist have repeatedly stepped in to overturn decisions of the elected branches of government activist judging, including rolling back campaign finance laws in Citizens United and voting rights protections away in Shelby County. The tool of choice of these activists is a supposedly neutral judicial philosophy of originalism and textualism, which gives judge the ability to substitute at their own judgment for the elected branches and to strike down and restrict laws that are disfavored by powerful, special interests. President Trump has been open and acknowledging that he wants a nominee on the court to strike down that ACA. You have said you’ve not made any agreements or statements to the contrary, but I will tell you it is a cloud over your nomination because he has over and over again.

He’s nominated advocates of originalism and textualism to carry out his political purposes. I’m afraid of the impact of that repeal on people like Jared. So we’ve been told that you’re following the Ginsburg rule. No hints, no previews, no forecast, in fact, during your confirmation hearing, Justice Ginsburg did answer substantive legal questions about matters that might come before the court, such as the right to choose. Yesterday, you had one notable and selective departure from your interpretation of the Ginsburg rule. When it comes to California versus Texas, the Republican challenge to the Affordable Care Act, you repeatedly claimed that the deciding question in the case is severability, not the individual mandate. That’s a legal opinion, but the court will only reach the severability question if at first finds that eliminating the penalty for the individual mandate rendered the individual mandate unconstitutional. Isn’t that right?

Senator, what I meant by that is that even if the mandate is unconstitutional, if it is severable than the statute would stand and so if the mandate is constitutional, then yes the law would stand. But I said that the emphasis… And I’ve gotten a lot of questions about severability for this reason and much of the commentary and the legal news about this is focused on severability because it means that whatever the holding is on the mandate, the severability question is the one that would be determinative even if the mandate were held unconstitutional. So it’s a descriptive, I didn’t say how I would rule on severability and I didn’t say whether I would interpret the zeroed out provision to be a penalty rather than a tax.

But you see that second part penalty tax you’ve already addressed that haven’t you?

No, I haven’t. The writing that I’ve done before that I assume you’re referring to addressed a different provision that wasn’t zeroed out. This is now an amended provision, so it’s a different provision before the court.

But your on record for criticizing Chief Justice Roberts opinion that the individual mandate is constitutional. Haven’t you?

I am on record saying that I thought that the majority opinion was a less plausible interpretation of the statute than that of the dissent. Again, that was an academic writing, number one. Number two, it was on different issues than those are presented in California versus Texas. And number three, I think you’re suggesting that I have some hostility to the ACA, which I assure you that I don’t. I think Senator Durbin there’s actually something you and I agree on here. Judicial activism is bad from either side and no matter what somebody’s policy preferences are about the ACA, I completely agree with you they shouldn’t be trying to undermine the policy that Congress enacted. So you and I agree on that and I embrace that view of a judge’s role wholeheartedly.

Thanks Judge Barrett.

We’ll do Senator Lee, Whitehouse],and Cruise, and break for lunch.

Senator Lee: (26:19)
Thank you, Mr.Chairman. Mr.Chairman, I’d like to submit to the record a letter from the American Legislative Exchange Council.

[inaudible 00:26:25] objection.

Judge Barrett, I want to talk about religious freedom for a moment, as I mentioned the other day, I think you and I share something in common on this and enthusiasm for religious freedom. I think as I mentioned the other day, I’m a member of the Church of Jesus Christ of Latter-day Saints we’ve been no strangers to religious persecution, even in this country unfortunately. On October 27th, 1838, the governor of Missouri ordered us exterminated. It wasn’t nice, but I assume he had his reasons. He believed we were heretics and I’m sure we are heretics in the eyes of many, but we try to be really nice heretics and it wasn’t until the late seventies that the governor of Missouri actually lifted that ban I’m sure Josh Holly as attorney general would have lifted it for us had it not been lifted by then. Religious Liberty has always been interesting to me for that reason and also just as a lawyer.

My late father, who was also a lawyer worked on and advised Congress regarding the Religious Freedom Restoration Act and my long-time professional mentor and former boss, Jean [Chaire 00:27:34] with someone who I worked with in establishing a first of its kind religious institutions practice group now a couple of decades ago. Catholics like members of my faith have also been subjected to religious persecution from time to time and in many cases were directly targeted through so-called Blaine Amendments, provisions worked into a number of state constitutions really for in many cases blatantly anti-Catholic purposes. These Blaine Amendments had of course is their purpose, the restricting of public funds going to certain religious institutions, including schools. Thankfully, earlier this year, the Supreme Court in Espinoza versus Montana Department of Revenue struck another blow against Blaine Amendments by reinforcing the earlier decision in the Trinity Lutheran case. Would you discuss briefly with us the Supreme Court’s recent jurisprudence on this issue regarding Blaine Amendments and how they intersect with religious freedom?

Sure. So the Supreme Court’s recent decisions get at the principle that have to be careful about the Establishment Clause, right? So there’s a line of cases saying a state or federal government clearly can’t establish a church and so we have a line of cases about what that means. But at the same time, Espinoza being an example, the court has been very clear that religious institutions can’t be discriminated against or excluded from public programs simply because they are religious.

Now during your time on the Seventh Circuit, you’ve been able to handle some cases involving religious freedom issues. For example, you joined a majority opinion in the [Gruescott 00:29:38] case, upholding the freedom of a Jewish religious school and its authority its own discretion to hire teachers at its school. Now that ruling was challenged before the US Supreme Court, but the Supreme Court denied certiorari in that case. But nonetheless a seven to two majority of the Supreme Court and Our Lady of Guadalupe case ended up essentially adopting a position similar to that which you joined, in the case I just mentioned, in Our Lady of Guadalupe case. Can you talk to us just a little bit about that opinion and about the Seventh Circuit opinion and its application of the ministerial exemption?

Sure. So the ministerial exemption as you say… The court had described it in Hosanna Tabor, the ministerial exception gives religious institutions discretion to hire and in the case of a school teachers it’s called who are ministers and what this gets at or what this requires courts to do is to decide who is a minister. And on the one hand, there may be some which you could plainly… Which might be more obvious questions like someone who teaches religion, religion teachers. So what the court has said is those would follow more in the Heartland. It gets a little bit more difficult if you have a religious school, like the Jewish school in Gruescott or the Catholic school and Our Lady of Guadalupe who has a teacher that’s like say for example teaching math and then the courts have to come up with a test to decide whether such a person is a minister or not. And what Gruescott and Our Lady of Guadalupe said is it’s a multi-factor test where no one factor is determinative.

So it can’t be determinative just that the teacher teaches math rather than religion. For example, in Gruescott the teacher spent time teaching Jewish prayers and saying Jewish prayers with the class and the school considered it part of the teacher’s duty to form the students, to teach them about Jewish prayers, and to form them in that tradition. So even though she spent other time in the curriculum, teaching other matters, it viewed that as part of her job and the school viewed her as a minister. So Our Lady of Guadalupe gives a lot of deference to the school’s characterization of whether someone is a minister or not, not to encourage discrimination of course, but simply to protect religious freedom. So at a Catholic school, the teacher may teach math, but also prays with the students in the morning, attends mass with them during the week, and is considered by the school… Say in Our Lady of Guadalupe to be someone who is also forming children in the faith. So it’s really about what the scope of that ministerial exception is and how you identify whether someone is a minister.

Thank you. Thank you, that’s helpful. When you came in front of this committee in 2017, we’re talking about just over three years ago for your confirmation to the US court of appeals for the Seventh Circuit. You said quote, “If there is ever a conflict between a judge’s personal conviction and that judge’s duty under the rule of law, it is never permissible for that judge to follow their personal convictions in the decision of the case, rather than what the law requires.” You still stand by that statement?

I do.

I’ve got some colleagues on the other side of the aisle who seem to want to focus on statements made in your personal capacity and in your capacity as a private citizen and a member of your faith as opposed to addressing actual cases dealing with abortion. I have a hunch that this is because your record on the Seventh Circuit actually shows that you’re able to set aside your personal convictions, because that’s what you’ve done when they’ve conflicted with your duty under the rule of law. In Price versus Chicago, for example, I assume you remember that case. Is a case in which you joined a Seventh Circuit panel opinion affirming the legality of a Chicago Buffer Zone Law, which places limits on pro-life activists as they’re demonstrating exercising their first amendment rights outside of abortion clinics. I assume that was the case because there was binding Supreme Court precedent on the abortion Buffer Zone issue. Is that right? Or do you want to tell me a little bit about your reasoning in that case?

So the panel held that the issue was squarely controlled by the Supreme Court’s decision in Hill versus Colorado.

So there was binding precedent on point and so you followed that precedent…

… on point. And so you followed that precedent and you did so as a jurist, rather than following whatever personal predilection might’ve otherwise guided you or any other member of that panel. In planned Parenthood of Indiana and Kentucky vs. Commissioner of Indiana State Department of Health, you joined a dissent written by judge Frank Easterbrook of the seventh circuit. And the Supreme Court later agreed with you in a seven to two decision, with respect to the Indiana law requiring fetal remains to be buried or cremated following an abortion. A position that garners a seven vote majority on the Supreme Court these days, at least a seven to two decision that includes Justice Briar and Justice Kagan, does not seem very radical to me. Do you disagree? Am I missing something about that?

The Supreme Court summarily reversed, which means without argument and briefing, the panel’s holding in that case, that the fetal remains, the disposition of fetal remains portion of that statute wasn’t rational.

All right. I’ll note for the record here, I don’t think I’ve ever heard anyone characterize as a radical act of conservative activism, a seven to two decision joined by Justice Kagan and Justice Briar. Judge Barrett, in addition to being able to set aside your personal convictions when deciding a case, you’ve also demonstrated the ability to expertly determine what the law requires. This stems, I believe, from a fundamental and I believe, correct view that a jurist, a judge needs to start from the premise that the law provides an answer. The fact that legal disputes can be difficult and reasonable minds might disagree as to them, doesn’t excuse the judge in believing that there is a right answer and you seem to follow with that and it shows up in your work in a way that reflects very well on you.

The Congressional Research Service conducted a review of your cases from the US Court of Appeals for the seventh circuit and determined that your decisions and this is a quote, “Events case-by-case consideration of the relevant law and facts without any clear overarching trend toward either expanding or narrowing fourth amendment protections.” This is exactly what I would expect from a textualist originalist on an issue like the fourth amendment, can actually be politically charged, but with the textualist originalist, this is exactly what you’d expect to see, somebody who doesn’t appear to be a partisan one way or another and comes down on both sides, on the government side and on the non-government side.

This would also account for a variety of outcomes in your cases, because you’re not aiming for an overarching trend in outcomes. Your analysis seems sometimes to come out in favor of a defendant, sometimes in favor of the government, and I find your dissents and your concurring opinions in panel decisions, to demonstrate this commitment to following the law as it’s written, rather than on the basis of some external objective. Can you tell us why you felt the need to dissent in the case of Schmidt versus Foster?

Yes. So Schmidt versus Foster involved a state court case, it came up through the Wisconsin courts. And in the case, there was a question of whether the defendant could raise a defense under Wisconsin law, called adequate provocation, for having murdered his wife. The case wound its way through the Wisconsin courts and the defendant argued that an ex parte examination of the judge, at which his counsel was present, but not committed to speak, did not violate the sixth amendment because in that case, the defendant, they didn’t want to preview his case for the prosecutor and so he didn’t want the prosecutor in the room. So the judge said, “Well, I will allow that, but only if your attorney doesn’t speak because if we’re not going to preview your case for the prosecution and not permit the prosecutor to be here,” that was how he’s going to do it. So then the judge proceeded to ask the defendant questions, to decide whether he could make an adequate provocation defense and concluded that he could not.

In that case, the Wisconsin courts held that this proceeding did not violate the defendant’s right to counsel, telling his counsel that he couldn’t speak. It came to my court under 2254, which is the state habeas statute permitting collateral review of state convictions. But [inaudible 00:40:26] requires very heavy deference to state courts, you can only disturb a state court holding, for example, on a matter of law, determination on a matter of law, if no reasonable jurist could reach that conclusion, or it has to be in conflict with clearly established Supreme Court law. And in that case, I made clear that it wasn’t up to us to decide whether we thought, as an original matter, just if the case had just come up before us, whether that violated the sixth amendment, because as the panel majority, which then became a dissent, when the case went en Banc, said this was an unprecedented kind of hearing, which if it was unprecedented meant that there was no clearly established Supreme Court law on point. So the decision in that case was driven by federalism and by the statutory instruction that federal courts give deference to state courts.

Thank you. In another case, United States vs Wilson, I believe that was a case in which you agreed with the majority, in concluding that the officers acted with reasonable suspicion based on the circumstances of the case and the detention there involving flight by the individual, from the scene. But you wrote separately, tell us why you wrote separately in that case.

So that case, if I have the case correctly, I’ve been almost 600 cases, but I think I know the case that you’re talking about. I think that was a case where police had a tip about some criminal activity and there were a group of men in a park. The police approached the park, and then they went up to talk to one of the men at the park because they noticed a bulge in his pocket. He was wearing gym shorts or some sort of athletic shorts that showed a bulge. And the police approached them, approached the man and he fled. And under Supreme Court case law, the determinative question for a seizure is whether the person fled and then was detained, then seized by the police.

The other way that that could have been justified is if, as a matter of a Terry stop, is the case. The police had reasonable suspicion to approach him just because they saw the bulge in his pocket. And I wrote separately because I thought that the policeman’s basis for stopping him, if this really had just been a Terry stop based on reasonable suspicion, was questionable because they really had … I mean, they had an anonymous tip. The people in the park didn’t match the description of the description given in the anonymous tip, all they saw was a bulge in the pocket. So if he had not fled, I mean, I thought the case should have just talked about the flight because if he had not fled, I was pretty dubious that that would have been a justified stop.

I admire your decision to write separately in that case. I think that shows real courage and moral and judicial leadership, to speak out and write separately when the occasion requires it and you did so here with nothing to gain from it. You did so because it was important to point that out under the law and I respect that a lot. In the couple of minutes we’ve got left, I wanted to ask you more broadly about something I’ve noticed in reviewing letters and other materials we’ve received in response to your nomination. I’ve noticed that there’s a common theme among your law clerks and your students, they feel like you see them as individuals and they feel mentored and taught by you. Tell us a little bit about that. I’d love to hear, for example, how you go about deciding who to hire as your law clerks and how you mentor them as they go through their year studying with you.

So over my teaching career, I’ve taught roughly 2000 students and now I have as a judge, four law clerks per year and then I also continue to teach at least a seminar, in which I have 15 or so students usually. And what I’m looking for in a law clerk, of course, is excellent legal ability because I need the help to do the legal research and all of that sort of thing. So I want someone who has excellent legal ability. I want someone who has integrity. I want someone who isn’t afraid to push back and express his or her own opinions, but at the same time, realizes that I am the boss and if I disagree, then they’re going to have to go along ultimately. But I also want clerks who are, and this is part of the integrity, who have character.

Our chambers is small, if someone had, say, sharp elbows in a chambers that only has six people, my assistant, the four law clerks in me, or that showed disrespect or arrogance, that would make for a pretty miserable year for everyone. And I’ve not been disappointed, every one of my law clerks has fit that bill. And so I view it as my duty with my law clerks, much like with my students, to encourage them to enter the profession as full people who hopefully have gained some knowledge of the law in their time with me, and also seeing how they can live a life where people can disagree without being disagreeable.

Thank you, Judge Barrett. I see my time’s expired. Thank you, Mr. Chairman.

Senator Whitehouse.

Mr. Whitehouse: (46:20)
Thank you, Chairman. Judge Barrett.

Senator.

First, if I may, Chairman, let me ask unanimous consent, that an essay I wrote for the Harvard Journal of Legislation called, Dark Money and US Courts, be admitted to the record.

Without objection.

That a report that Senate Democrats prepared called Captured Courts, be admitted to the record and that an article by Christopher Leonard in the New York Times called, Charles Koch’s Big Bet on Barrett, describing activating his political network to support Judge Barrett’s nomination, also be entered to the record.

Without objection.

Thank you. Judge Barrett, on the seventh circuit, you are subject to a code of ethics, are you’re not?

I am.

And I presume you are okay with that?

Of course.

In fact, I would submit you probably think that’s a good thing.

Yes.

And indeed it is true of all the circuit courts, that they are subject to pretty much the same code of ethics, correct?

Yes.

It gets different at the Supreme Court. Supreme Court is not subject to a code of ethics, is it?

The cannons of judicial conduct that apply to lower court judges, do not apply to the Supreme court. Although, I do believe it’s the practice of the Supreme Court to follow them.

Yeah, they do not apply, we agree. And indeed going to the Supreme Court can interrupt an ethics investigation, as we saw with Justice Kavanaugh, who had an ongoing ethics investigation in his circuit that was interrupted by his elevation to the Supreme Court, without having concluded. Let me first ask you, there’s no such thing with you, correct? We have no seventh circuit ethics investigation going on that would be interrupted by your elevation to the Supreme Court.

I’m not aware of any-

I suspect you would be, so good, we can put that behind us. With respect to reporting of gifts, of travel, of hospitality, of what the constitution might call emoluments. All of the circuits have a pretty solid rule about reporting those and you comply with that rule on the seventh circuit, do you not?

I do. It might even be by statute that we have to do that, but I do.

Yes. And the rule, I don’t know how familiar you are with this, so I’ll offer this as a proposition, the rule that you follow and the way in which circuit judges follow it, aligns quite well with the reporting requirements that the executive branch members of the cabinet have to do when they get gifts, travel hospitality and other emoluments. And it aligns quite well with the reporting that members of Congress have to do when we get gifts of travel or hospitality or other such emoluments.

The discrepancy here is with the Supreme Court, which has a much lower standard of transparency and disclosure about those very same things. So it’s a bit of a mystery when I see the situation that when you go up to the court, you be not subject to the code of ethics that you’re subject to now or any other, and you will have lower reporting requirements than you do now, or that any of us do. And I flagged that for you because I think it’s anomalous that the highest court should have the lowest standards. And I don’t know if you want to say something about that, at a minimum, I hope you’ll keep an open mind about trying to fix that when you’re on the court. If you have a defense of why the highest court should have a lower standard, have at it now.

I know that the justices file financial disclosure reports, I’ve never looked at one. I didn’t know that they were different or that it was a lower standard from the ones that the rest of us file.

Okay. We’ll take a look at that when you get up there. This is a matter, I think, that the court handles administratively-

I’ve never interrupted anybody, but can I just ask one question?

Of course.

Now that you know that, how do you feel about it?

That the Supreme-

I’ve stopped my time while you’re answering the chairman’s question.

I think it’s a good question. Now that you know, how do you feel about it?

I guess, as I just said to Senator Whitehouse, I’m surprised because I did think it was by a statute that applied to everyone, so I’m surprised. I’ve always complied with filling out my financial disclosure reports. And as I’m sure it may have been for you all, it’s a little uncomfortable the first time, to make your finances available, anybody can request it, but I’ve always complied.

For the record, it’s a question of interpretation and practice and Senator Graham and I have actually had public conversations about trying to remedy this with a legislative fix. So you’ve got that potentially coming your way, so I flag that for you. The second thing, another topic I’d like to raise with you, is you’ve repeatedly mentioned during this hearing, the phrase about litigation winding its way up through the courts and ultimately to the Supreme Court. And you’ve described that process of winding its way, as a important restraint on judicial activism. That you got to wait until a case gets to you in the ordinary course, correct?

Correct.

That’s a fair description of where you’ve been?

Correct.

Yeah. And ordinarily, I don’t know if you’ve ever done a case, but ordinarily when you do a case, it begins with a person, right?

Correct.

And that person feels an injury.

Yes.

And then that person goes to a lawyer.

Yes.

And then that lawyer goes, on their behalf, to court.

And files a complaint.

And files complaint. And then in court, they try to win and vindicate their injury. That’s the basic standard way in which this works.

Yes.

So it gets a little weird sometimes and that’s a circumstance I’d like to bring up to you because it touches on some of the stuff that I addressed yesterday. One case, it’s not even a case. You know Janice?

Yes.

Okay. Let’s describe this as the Janice saga, because it’s more than really one case. And it’s really about a completely different case called Abood. And you’re familiar with the Abood decision?

Yes.

So the Abood decision was precedent for what, 40 years?

I can’t remember when Abood was decided, but it was precedent before Janice.

Yeah, roughly 40 years, I’ll tell you. And had repeatedly been reaffirmed.

It was a longstanding precedent.

Yep. On which there was considerable reliance.

Let’s see. So Janice did overrule that precedent and so Janice did go through the application of the stare decisis factors in deciding whether to overrule it, whether that-

There was in fact reliance in the 40 years that it had been the law of the land, on the question of, the union question that it had resolved.

Well, I don’t want to second guess or criticize or praise the majority in Janice’s-

I’m not asking you to, I’m asking you as a matter of fact, had 20 plus states relied on it?

Well, Senator, I think reliance and the degree of reliance on Abood is a legal question.

We’ll just leave that then. So the Janice saga begins actually with a case called Knox, in which Justice [Alito 00:54:39] took a shot at Abood. He criticized it as substantially impinging upon first amendment rights of union members. Just for people who are watching, the Abood case was about the right of a labor union to get compensated, not dues, but just compensation from non-members, when in their representation of their members, they get added benefits for the people who are not members. So not the most exciting part of the law, but settled this question of when labor unions could get compensated for work they do for non-members. But justice Alito did not like it, he took a shot at it in Knox versus SEIU. And the concurrence in that case said, “Whoa, wait a minute.” “The majority’s choice to reach an issue not presented by the parties, briefed or argued, disregards our rules.” But justice Alito didn’t like something about Abood And so he took that shot.

Then we went on to a later decision called Harris V Quinn. Alito took another shot at Abood in that case, describing Abood as having analysis that is questionable. He undertook an extended critique of the decision, describing it as having questionable foundations. Justice Kagan, spotted that and in her dissent, she said, “Today’s majority cannot resist taking pot shots at Abood,” and described its critique of Abood’s foundations as gratuitous dicta. But the message went out from Judge Alito that he wanted to do something about Abood. There was something about Abood that he did not like. And with that, we went to, that’s the prequel, then we went to the two cases that followed. The first one was Friedrich, which was supposed to be the case that got rid of Abood. And it had an interesting travel because the lawyer in the case was one of these groups from Janice.

It was the Center for Individual Rights, right here, who was counsel. In Janice, the National Right to Work Legal Defense Foundation was counsel. So they switched. In Friedrich, Center of Individual Rights was counsel, National Right to Work was an amicus. When it went on to Janice, they switched, National Right to Work Defense Foundation was counsel and Center for Individual Rights was an amicus. And from everything that I see, it looks like they actually went out and found the plaintiff. So back to our earlier discussion, it wasn’t the injured person that went and hired a lawyer, it was the legal group that went and found a plaintiff. And then they went to court, which everybody does, but it got interesting there because there, the lawyers asked to lose.

I don’t know if you’ve ever been a case in which the lawyers asked to lose before. I never have been. I’ve never litigated against anybody who asked to lose. Have you ever been in a case in which a party asked to lose?

No, I don’t think I’ve ever experienced that.

Yeah, I can imagine not. So these groups with all this money behind them, from Donors Trust and Bradley Foundation and all, come into court and they say, “Please dismiss my case,” in the District Court. And then they go up to the ninth circuit and they specifically ask the ninth circuit to get rid of their case, to uphold the decision dismissing their case, “As quickly as practicable and without argument.” Have you ever seen a case in your circuit where somebody came in and said, “I’d like to lose and I’d like to lose as quickly as practicable and I’d like to lose without making an argument on behalf of my client.”

But Abood was controlling law at that point, right?

My question was, have you ever seen that happen in your circuit?

I have not seen that happen in my circuit.

Yeah. Okay. So then the case went on to decision and as predicted or signaled by Justice Alito, it looked like it was going to be a five to four decision knocking out Abood after 40 years. Sadly and unfortunately, Justice [Scalia 00:59:25] died before that decision could be rendered, so it actually turned out to be a four, four decision. And as you know, a four, four decision, the tie goes to the decision below and the ninth circuit prevailed and so that was it for Friedrich. But it didn’t take long for this same group, so this is back to my Janice exhibit, these are all the commonly funded amici and lawyers who showed up in Janice, 11 of them had showed up in Friedrich. So Janice was a reunion of the team, everybody piling back in together to get what they … And there was no big rush this time, because this time they had to wait for the vacancy on the court to be filled. They didn’t want a four, four decision, they had to wait for Justice [Gorsuch 00:01:00:13].

Mr. Whitehouse: (01:00:14)
So there wasn’t the same rush, the case came through more ordinary travel and then boom. Then they went to argue it and down came the decision. And I ask you to think that through, because I’ve done some appellate argument and I’ve done some trial work and I have run an awful lot of litigation. And one of the things that has been a constant for me, has been the belief that even if I was taking a long shot case, I’d get a fair hearing, I’d get a fair decision and I had a shot. I’ve got a feeling that the lawyers going into the United States Supreme Court in that Janice case, looking at this array of commonly funded anti-union front groups, assembled against them as amici, having seen what Friedrich portended, having been signaled by Alito in those earlier cases, that they wanted to get rid of Abood, that they were on the hunt for Abood. That’s a feeling that no lawyer should have in America.

All I want to do is leave with you the thought, that when you’re on the court, I hope you will conduct yourself and see in whatever way you can, that the court conducts itself in such a way that no lawyer goes into an argument in the United States Supreme Court, feeling that the case is set against them and nothing to be done other than go in and take your medicine.

Senator Whitehouse, I will approach every case with an open mind.

So I have a little bit of time left, so I’m going to get onto a third … By the way, I’m not the only one who sees this as a saga, the dissent and Janice said, “Here ends the six year campaign to undo Abood by the majority of five.” Pretty safe to say that you don’t think courts should be campaigning to reach decisions?

Without commenting on Janice or what happened there, yes, I think that judges shouldn’t have campaigns.

Or projects.

I think judges should not have pet projects and they should not have campaigns. They should decide cases.

Thank you. So let’s talk about, because we’ve had all these, I think, odiferous amici fluttering around the court, without disclosing who’s really behind them, let’s talk about amici for a minute. First of all, on the seventh circuit, do you have ex parte meetings with litigants?

No.

Because why?

Well, there would be-

Because it’s wrong?

Yeah, sure. I mean, there are constraints against doing so.

And how about with amici, if you have a case in which there is an amicus in a case that is before you, would you meet privately with the amici while their case, the case in which they’ve written a brief, is pending?

You mean, meet privately, allow the amici to have access to the judges privately, to try and make their case?

Yes.

I would not do that.

No. And why would you not do that?

That would be inappropriate.

Yep. And in fact, is it possible that you could not even know who was really behind the amicus if they haven’t told you?

You mean how the amicus was funded?

Correct.

To my knowledge, I’m thinking through what the disclosures are in the front of briefs. I mean, to my knowledge, that information is not part of what groups disclose when they file an amicus brief.

Correct. There’s actually a bit of a tradition that has developed that amici, in their disclosure, only describe who paid for the actual physical preparation and filing of the brief. So if you had a big interest, let’s say, and gave a group a million dollars, maybe even stood up a pop-up group out of no place and said, “Here’s a million dollars. I want you to go out and do great things. Oh and by the way, we’d sure appreciate if you filed an amicus brief in this matter, just don’t mention us. And we’d love to give you some advice about what you should say in the amicus brief. And it would be nice if you’d let us read it before you file it, so we can make sure we don’t need to give you any more advice.” That doesn’t meet the standard of 37.6, the court and the parties would never know.

And in fact, this happened in the Oracle case, in Oracle versus Google. Turns out that Oracle had given up to $99,000, according to their disclosure, to something called the Internet Accountability Project, which filed a brief and didn’t disclose that Oracle, a party in the case, had given it $99,000 and Internet Accountability Project was basically a pop-up. Somebody established it, it took the money, it wrote the brief. There’s a group that has more cred, that’s been around longer, called the American Conservative Union, which was given up to $500,000 by Oracle and filed a brief in the Oracle case and didn’t disclose that it had been given that kind of money by Oracle. Isn’t that the kind of stuff that parties ought to know, that the public ought to know, and that the court ought to know?

I didn’t know that until you just shared that information with me.

Well, think about it because I think it’s something that the public and the parties and the court ought to know, because if what you have is amicus groups that are coming in flying false flags, not revealing whose interests they’re really there to support and potentially teeing up arguments and ideas that will benefit the secret funders, that will maybe tee up for a case they know is coming, but isn’t this case, but if they can tilt the law a little bit in it, it can have an effect later on, other parties should know that. So I urge you to consider that and I’m 13 seconds out. So I’ll leave it with that. Please think about these things. There is something that is not right about the way this is happening, and I urge you and I urge anybody from the court who is listening, to try, to sincerely try to clean this mess up because it is not good for the court. Thank you.

Thank you, Senator Whitehouse.

Mr. Chairman: (01:07:04)
Senator Cruz.

Mr. Cruz: (01:07:08)
Thank you, Mr. Chairman. Let me say, first of all, the last three days of hearings have revealed very good news. They have revealed the news that Judge Barrett is going to be confirmed by this committee and by the full Senate. With two full days of questioning, we’ve seen that our democratic colleagues have very few questions actually, to raise about Judge Barrett’s qualifications. Very little of the time we’ve spent in here has concerned her record as a judge, her 20 years as a respected scholar. Instead, much of this hearing has focused on political attacks directed at president Trump. I recognize our democratic colleagues are not going to be voting for president Trump in November, that’s certainly their prerogative.

Mr. Cruz: (01:08:02)
But they’ve largely abandoned even trying to make the case that Judge Barrett is anything other than exceptionally well qualified to serve as a justice. It is striking that as we sit here right now in this committee room, there are only two democratic senators in the room. If you look at the dais, there’s chair after chair, after chair, that is empty, the democratic senators are no longer even attending. I assume they’ll show up for their time. But it is indicative of what they’re tacitly admitting, which is that they don’t have substantive criticism.

Mr. Durbin: (01:08:45)
Mr. Chairman, may I make a point of personal privilege?

Mr. Cruz: (01:08:47)
Of course.

Mr. Durbin: (01:08:48)
We’re in the midst of a COVID 19 crisis, a pandemic, and some members are in their offices following this on television. And to suggest their absence here means they’re not following or participating, is incorrect.

Mr. Cruz: (01:09:00)
I would note the Senator from Illinois and his personal privilege, somehow omitted the fact that all but two of the Democrats were physically here yesterday and after the questioning, made the decision not to be here. That’s fine, you’re welcome to make that decision, but it’s indicative, when it comes to the time of the questioning, that this side of the aisle does not have arguments against Judge Barrett that have any chance of prevailing. I do want to address a couple of the individual points that have been made. So many of the democratic senators have talked about Obamacare, at great length. At times I have been confused and I thought we were on the health committee instead of judiciary committee, because it has been such a central talking point for every Democrat, that if president Trump is reelected, they assert everyone with preexisting conditions is going to be denied healthcare and people will be dying in the streets. And I get that’s their reelection message, it’s not actually connected.

Mr. Cruz: (01:10:03)
… that’s their reelection message. It’s not actually connected to reality. It’s not actually true. Every member of the Senate agrees we’re going to protect pre-existing conditions. And I would note that not one of the Democratic senators who raised that point have addressed the very real and catastrophic failures under Obamacare. Obamacare has doubled the profits of the big health insurance companies, doubled them. Obamacare has been great corporate welfare for giant health insurance companies. At the same time, according to the Kaiser Foundation, premiums, average family’s premiums, have risen $7,967 per year on average. That is catastrophic that millions of Americans can’t afford healthcare. It is a catastrophic failure of Obamacare, and none of that has anything to do with Judge Barrett’s nomination to the Supreme Court. That is a very good argument for members of the Senate to be having.

Mr. Cruz: (01:11:05)
And yes, we should be protecting pre-existing conditions and expanding competition, expanding options and lowering premiums. This body will continue to debate that, but Judge Barrett will not be the decision maker on what the appropriate approach to health care is as a policy matter. A second point I want to address… Senator Durbin had an exchange with Judge Barrett about the right to vote, and also about the Second Amendment. Now as a policy matter, many Senate Democrats number one, want to see the Second Amendment abridged to the maximum extent possible. And number two, many Senate Democrats have decided as a policy matter that they would like to see as many felons as possible able to vote. That it is, one word presume they have made a determination it’s in their political interest to have more felons, more convicted murderers, more convicted rapists, more people convicted of domestic abuse, voting. They made an assessment that that helps their prospects on Election Day.

Mr. Cruz: (01:12:19)
They’re entitled to make that that policy determination, and different states have made different determinations about in what circumstances felons should be allowed to vote, in what circumstances felons should not be allowed to vote. I for one am a bit puzzled. I’m not sure our democracy is better by changing the law to allow murderers to vote. I’m not sure the operation of the republic would be better if Charles Manson had a greater voice in the electoral system. And I would note one of our colleagues, Senator Sanders from Vermont, of course of the Democratic presidential primaries, argued not just felons who are out of jail. He argued that felons in jail, literally Charles Manson serving a life sentence, I think multiple life sentences for murder, should be able to vote. It’s a policy matter. I think that’s pretty out there. But the interesting thing is Judge Barrett wasn’t called upon to make a determination whether as a policy matter, every felon should vote or no felon should vote, or somewhere in between.

Mr. Cruz: (01:13:32)
Rather, she was doing a very different thing, which is applying the law. And Judge Barrett, did I hear you correctly that when you were describing your dissent in the countercase that one of the reasons you said that there was a difference in the law as a concern voting versus the Second Amendment is because the Fourteenth Amendment, the text of the Fourteenth Amendment, explicitly contemplates legislatures making restrictions on voting based on whether you’ve committed a crime? Is that right?

That’s right.

Mr. Cruz: (01:14:05)
And I actually have the text of the Amendment, because Senator Durbin was highly critical. As a policy matter, he wants those felons voting, but he didn’t in fact address the legal issue that as a judge, Judge Barrett was obliged to address, and section two of the Fourteenth Amendment provides in relevant part. “But when the right to vote at any election is denied or is any way abridged, except for participation in rebellion or other crime…” Well, Senator Durbin may not like that the Fourteenth Amendment explicitly contemplates that if you commit a crime, if you’re a felon, you may forfeit your right to vote, but that is in the text of the Constitution. And as a judge, Judge Barrett would be not doing her job were she not to look at the text of the Constitution and follow the text of the Constitution. Am I right, Judge Barrett, that the Second Amendment doesn’t have similar language suggesting… Or other crime, or anything comparable to that?

You are correct.

Mr. Cruz: (01:15:18)
All right, a third point. There’s been some discussion from Democratic members raising the question of the Federalist Society, and dark money, and all sorts of mysterious connections. Now, Judge Barrett, am I right that at least for a period of time, you were a member of the Federalist Society? Is that right?

While I was on the faculty as a full-time tenured professor.

Mr. Cruz: (01:15:45)
And you’ve spoken at some Federalist Society events, is that accurate as well?

I have.

Mr. Cruz: (01:15:52)
In your time dealing with the Federalist Society, have they ever lobbied you to take a particular position?

They have not.

Mr. Cruz: (01:16:00)
In your time as a judge, has the Federalist society ever filed a brief in your court urging an outcome in a particular case?

It’s my understanding the Federalist Society doesn’t litigate. They have not ever filed a brief in my court.

Mr. Cruz: (01:16:11)
Your understanding is correct. The Federalist Society does not file Amicus briefs. Our Democratic colleagues have been engaged in a sustained effort to try to sully the Federalist Society. It is disconnected from reality, but I will say… And I wish Senator Whitehouse were here. My intention was to have this discussion with him here, because he just spoke and spoke about all the connections he had, his charts. I would note, I was feeling a little bit bad that I didn’t have a chart with sort of red fuzzy yarn connecting all the things that are the deep conspiracies going on. So in that interest, I do have a chart that’s a little bit smaller that has similar connections back and forth. And it is produced by… What is it? The Americans for Public Trust. And it shows the dark money connections between Senator Whitehouse and Planned Parenthood and Arabella Advisors, and all of these different organizations with money flowing back and forth and back and forth, all the dark money.

Mr. Cruz: (01:17:19)
And in fact, I would note one of those dark money organizations on the left that we talked about yesterday, that is the Demand Justice organization. I would point out the Demand Justice organization has decided to be directly involved in these proceedings, because this is a left-wing dark money organization that has posters that are right outside of this building, that have pictures… Senator Lee, you’re on the poster. Chairman Graham, you’re on the poster, and the posters say, “Supreme super spreaders. Politics first, health and safety last.” You know what? The First Amendment is a great thing. If they want to put your pictures up… It’s pretty good picture of Senator Lee. It’s not as good a picture of… Chairman Graham needs to work on getting a better picture to them.

Chairman Graham: (01:18:09)
It’s not their fault.

Mr. Cruz: (01:18:15)
The Democratic dark money efforts dwarf the Republican dark money efforts, which is why without a twinge of hypocrisy, Democratic members make this charge repeatedly. And in fact, I will point to one specific example, which is a judge. John J. Jack McConnell, who was a judge in the state of Rhode Island. Now, who is Judge McConnell? Well, he used to be the Treasurer of the Rhode Island Democratic Party, and a director of the Rhode Island branch of Planned Parenthood. Well, how did Mr. McConnell become a judge? Well, according to CQ roll call, he contributed about $500, 000 to Democratic political committees before becoming a judge. This, by the way, is more than any other judge nominated by Obama or Trump. So Judge McConnell stands at the top, $500,000. He donated $12,600 to Senator Whitehouse. He hosted a fundraiser for Senator Whitehouse at his home in Providence in 2006. Judge McConnell’s wife gave another $250,000 to candidates and causes, so that’s $750,000. And now Judge McConnell is a judge after Senator Whitehouse vigorously led the fight to get him appointed to judge. He sits on the Committee on Code of Conduct of the US Judicial Conference, and what has he done on the Committee on Code of Conduct? He has helped lead the charge to issue a new rule to try to ban judges from being members of the Federalist Society. And to the shock of no one, looking at the red yarn connections, after Judge McConnell and the committee put out this assault on the Federalist society to prohibit judges from being members, Senator Whitehouse and six other Democratic senators loudly cheered that effort in writing. Now fortunately, that effort was roundly denounced. Over 200 federal judges signed a letter opposing this.

Mr. Cruz: (01:20:29)
The Federalist Society takes no positions. It doesn’t lobby, doesn’t file Amicus briefs, doesn’t take public policy positions. Most of its events are debates where people on the left are featured prominently. Every single US Supreme Court justice, all of them, have spoken at at least one Federalist Society event. And thankfully, the assault on the Federalist Society was withdrawn in the face of over 200 federal judges, and I would note 29 senators, roundly criticizing the attempt. Let’s turn to the fourth issue. Many Democratic members of this committee seem to be treating this hearing as a policy hearing on what’s good healthcare policy, what’s good gun policy, what’s good voting rights policy. Judge Barrett, in your view, is it the responsibility of a federal judge to implement policy positions that they might happen to agree with?

That’s your job, not a judge’s.

Mr. Cruz: (01:21:46)
I very much agree with you. You know, it’s easy for someone watching these proceedings to assume both sides want the same thing, just on opposite partisan lines. It’s easy for someone watching to assume, “Well, the Democrats, they want Democrat judges to implement their policy, and the Republicans, they want Republican judges to implement their policy.” As easy as that is to assume, I don’t believe that is accurate. It is certainly not accurate with respect to the sorts of judges I would like to see nominated and confirmed, and I’ll give you an example of that. An issue that I am deeply passionate about is school choice. I think school choice is the civil rights issue of the next century, but I also think the right arena to fight for school choice is right here in the United States Senate. The right arena to fight for school choice in the state legislature, as it is in the politically accountable elected legislatures.

Mr. Cruz: (01:22:52)
So, do I want to see a federal court issue an order mandating school choice across the country? It might be simpler if I could just convince five justices to order every jurisdiction in America, “You must have school choice.” It would be a lot easier than trying to convince 51 or 60 senators trying to convince the House. We’ve gotten school choice legislation passed through this body that I’ve introduced, but it’s been hard fought. It’d be much easier if five philosopher kings could just mandate it, but that would not be an appropriate judicial role. And I’m certainly not asking Judge Barrett to issue any ruling, although I believe that policy is the right policy. It’s not a judge’s role to mandate it. Interestingly enough, our Democratic colleagues do support judges prohibiting it. If you look at a case called Zelman v. Simmons-Harris, that was a case that was a challenge to Ohio school choice program.

Mr. Cruz: (01:23:56)
Ohio school choice program gave scholarships to thousands of low income children, mostly African-American and Hispanic children trapped in failing schools. It gave them hope. It gave them a chance at a decent education, a chance to escape violence, a chance to have a shot at the American dream. It was immediately challenged. The case went to the Supreme Court, and by a vote of five to four, the Supreme Court upheld the program. Four justices were prepared to strike down that program as unconstitutional, and with it, every other school choice program in America. To rule that the Constitution doesn’t let the elected legislatures decide to give scholarships to kids if they choose to go to a religious institution.

Mr. Cruz: (01:24:52)
As far as I’m concerned, that’s a radical and activist position. Four justices were ready to shut down school choice programs all across the country. That’s an example of how one side wants the court to mandate their policy outcomes. The other side does not. I don’t want school choice mandated. I want it to be left to the political process. For my last couple of minutes, I want to address one other issue, which is the issue of packing the court. We have seen, repeatedly, Joe Biden and Kamala Harris refuse to answer whether they would pack the court. What does it mean to pack the court? Packing the court means one very specific thing, which is expanding the number of justices to achieve a political outcome. Packing the court is wrong. It is an abuse of power. I believe, should they win in November, that our Democratic colleagues will pack the court.

Mr. Cruz: (01:25:53)
I think that’s why Joe Biden refuses to answer it, although he did say when asked the voters don’t deserve to know his answer as to whether he’ll pack the court. And what we’ve seen this past week is we’ve seen, with a message discipline that is really quite remarkable, Democratic senators all making a new argument that what Republicans have done for four years is packing the court. With all due respect, what utter nonsense. Filling judicial vacancies is not what that term means, and they are endeavoring to redefine the language, to set the framework, to set the predicate for a partisan assault on the court. I will read you some quotes. Joe Biden in 1983, quote, “FDR’s court-packing idea was,” quote, “a boneheaded idea. It was a terrible, terrible mistake to make. And it put in question an entire decade, the independence of the most significant body in this country.

Mr. Cruz: (01:26:59)
Pat Leahy in 2017, quote, “The Judiciary Committee once stood against a court packing scheme that would have eroded judicial independence.” That was a proud moment. Senator Blumenthal, much the same. Senator Durbin in 2018, quote, “75 years ago we went through this, and I think the Congress was correct in stopping this popular president named Franklin Roosevelt from that idea.” Justice Ginsburg in 2019, quote, “If anything would make the court look partisan, it would be that. One side saying, ‘We’re in power. We’re going to enlarge the number of justices,'” not fill vacancies, “‘enlarge the number of judges so we would have more people who would vote the way we want to.’ Nine seems to be a good number. It has been that way for a long time. I think it was a bad idea when President Franklin Roosevelt to pack the court.” That’s the next fight we’re facing if Democrats win the majority. I hope that we don’t see that come to pass.

Chairman Graham: (01:28:01)
Thank you, Senator Cruz. We’ll come back at 12:30, and we’ll lead off with Senator Coons. 12:30.

Judy Woodruff: (01:28:12)
Chairman Lindsay Graham of the Senate Judiciary Committee calling… Let’s see, let’s listen. I thought maybe he was going to say something else. Senator Graham, who’s the Chair of the Senate Judiciary Committee saying the committee will take a half hour break for lunch. They’ve spent another three hours this morning opposing questions and making statements around the confirmation process for Judge Amy Coney Barrett, who is of course President Trump’s third nominee to the United States Supreme Court. We heard the hearing begin with his trying to put it in historical context, Senator Graham saying that Judge Barrett is the first woman nominated to the court who is unashamedly pro-life. He went on to say, “We have arrived,” referring to those social conservatives who believe they are pro-life. And then a few minutes later, we heard Senator Dick Durbin of Illinois, the second ranking Democrat on the committee, putting the hearing in a different historical context, saying, “We’re making history of a different kind.”

He said, “This is the first ever nominee to the Supreme Court to be heard after July of an election year,” pointing out how close we are now, just two and a half weeks to Election Day in the United States. Joining me, our contingent, our NewsHour contingent, our congressional correspondent Lisa Desjardins, our national correspondent John Yang, who covers Supreme Court issues. I’m going to turn to the both of you first before I turn to our analyst. And John, there was an effort by Democrats again this morning to try to get Judge Barrett to elaborate on how she might rule when some of these cases that are of such great importance to the Democrats come up before the Supreme Court, in particular the Affordable Care Act, Obamacare. Did we learn anything more this morning about that? What did we see that was new this morning from Judge Barrett?

John Yang: (01:30:26)
Well, I thought it was interesting that you talked about the lead-off questions from chairman Graham. I thought he also did a little cleanup as it were on yesterday, particularly on the Affordable Care Act when she talked about severability. And he walked her through the doctrine of severability to get to the point that one of the tenets of severability is that you try to preserve the law. Judges try to look for a way to preserve the overall law if a part of that law is found unconstitutional. I thought that that was sort of, in a way, trying to allay fears, or sort of blunt the Democratic argument that she was being put on the court to strike down the ACA entirely.

John Yang: (01:31:18)
She also said that she had explained more, as she did yesterday, about her academic writings criticizing the reasoning of Chief Justice John Roberts in saving and upholding the law in the 2012 decision. But also was asked if she had ever written an article supporting the ACA, and she said no. But of course, she could argue that that would have been a policy standpoint, a policy argument. So I don’t know that we heard a lot more. We certainly heard a lot more about the ACA from the Democrats, but I don’t know that it resulted in any questions for Judge Barrett, or certainly any answers from Judge Barrett.

And Lisa Desjardins, I know you’ve been talking to senators on both sides of the aisle. What are you hearing from Democrats at this point about how they think the judge is coming across in these hearings?

Lisa Desjardins: (01:32:17)
Speaking with Democratic sources, Judy, they admit that Judge Barrett is a very strong witness. They say she is consistent. She is not someone that they have been able to… Never get under her skin. You know, she’s never shown any sign, barely any signs of frustration with even the most intense lines of questioning. So Democrats admit that from her perspective, she’s doing a lot of things well. However, Democrats say they still want to continue to show that they believe she would have some extreme approaches to the law. And what you may have noticed, Judy, and to some degree John was talking about this, is that they’re trying to talk mostly about the effects of what her rulings would be.

And one other note, something new that I’m noticing today as well, Judy, you hear even more resignation from some Democrats about this process and the idea that she will be confirmed. Senator Sheldon Whitehouse of Rhode Island is saying, “When you are on the court,” as he addressed her. And why I raise this is because I’m noticing Democrats seeming just to try and disrupt her nomination, but I also since they’re trying to influence her. That they see her as someone who’s getting on the court, and you could hear in Whitehouse’s exchanges with her, he was trying to raise a concern about outside groups and their attempts to influence the court that he thought she needed to know about. That wasn’t about her qualifications. That was about influencing her and how she sees the court as a potential justice.

And I’ve seen that, Lisa, as well in the number of Democratic senators who’ve brought the stories of Americans, of individual Americans who would be affected if the Affordable Care Act goes away. We’ve heard a number of personal stories and senators spending time talking about individuals whose lives would be changed. And you’re right, it does seem to be an effort to educate, to inform, to make sure she knows that real people, real lives are going to be impacted, affected if the Affordable Care Act goes away. I want to bring in our analysts now, our NewsHour regular Marcia Coyle of the National Law Journal, Victoria Nourse of Georgetown University. She was chief counsel to then Vice President Joe Biden, and counsel to the Senate Judiciary Committee when he was its chairman. And Saikrishna Prakash of the University of Virginia, he previously clerked for Justice Clarence Thomas. He will be testifying tomorrow before this committee as a witness in support of Judge Barrett’s confirmation.

Marsha, I want to come back to you on this question of the Affordable Care Act, the ACA, Obamacare, as so many people are now familiar with, and this question at which John raised of severability and the next case that’s coming before the court. The reason so many Democrats are bringing this up, this is a case that is scheduled to come before the court in just… What, eight days? A matter of days after the election day when Judge Barrett might very well be sitting on the Supreme Court. Why is this severability clause question getting the attention that it is?

Marcia Coyle: (01:35:30)
Well I think as John just said, from the Republican perspective, if they emphasize severability, they’re trying to downplay the possibility that the entire act could fall. And there is that potential that severability could save it, but the first the court has two questions. The first question they have to decide is whether what the Senate did by eliminating the penalty for not having health insurance made the mandate, as we call it, unconstitutional. Now, the Trump administration and the 18 state Republican Attorneys Generals contend that it is, that that makes the act unconstitutional. Then if the court says, “Okay, it is unconstitutional,” they face the second question which is, “Can that provision be severed?” That’s the severability, severed from the entire act. And if they agree that it can be severed, then the rest of the act will stand. Nothing will happen to it.

So I think the emphasis by Republicans on severability is that, “Oh, this isn’t such a big deal. The court can still save the act.” Now, the court does have a strong presumption. There is a strong presumption of severability when they face it. They do want to try to save something that Congress enacted if it’s at all possible. But still, the threat of the act falling entirely, it’s it’s real. It’s there, because they may decide the mandate isn’t severable. If you recall in 2012, when the act was before the court, there were four justices who felt that the mandate was so integral to the entire law that if that was unconstitutional, the entire law had to fall.

So, we don’t know how Justices… Let’s see. Gorsuch, Kavanaugh, and possibly Justice Barrett, would look at the severability issue as well as the main question on whether the mandate is unconstitutional because of what Congress did. So you see, Judy, it’s working both sides here. The Republicans are trying to downplay the threat, but the Democrats, through all the stories they’ve been telling us about real people with health insurance problems, just showing or arguing that there is a real threat here to the act.

And without losing everybody by getting into the weeds, I do want to spend a couple more minutes on this. Professor Victoria Nourse, what do we know from Judge Barrett’s… Either rulings, writings, remarks, speeches, about how she might come down there on that?

Victoria Nourse: (01:38:38)
Well, she’s an expert in statutory interpretation, and severability is a doctrine of that. And she said, which is accurate, is that these kinds of arguments have traditionally failed. I’m concerned, because this is an unusual severability argument. It only has arisen because of textualism. That’s one of these terms that gets bandied about, and it means that you try to make the entire text fit together. And there is a textual argument, and if that textual argument wins, there’s a part of the statute that says you can’t sever it, basically. That’s how they’re reading it. And if you operate, as Justice Scalia did in the prior case, you’re going to hold it’s inseverable. I can see her doing that, because she is a textualist. She’s very committed to this idea that this is what restraints judges. Now, I think it’s an extreme idea, because I think judges gerrymander text. I think they pick and choose the text they like. But it is possible that she would rule against the Affordable Care Act based on this textualism argument, which is why this case never would’ve come up to the court when I went to law school.

Professor Saikrishna Prakash, what do you see in her background that tells you how she might rule on this? I’m not hearing you. Here we go.

Saikrishna Prakash: (01:40:07)
Judy, this is a very tough question because it’s focused on the severability doctrine, and what happened is Congress took out the tax penalty. And in the previous case, the court had said that the statute would be unconstitutional as a regulation of commerce. So, there’s three issues. One is, do the states have standing? Two, is the individual mandate now unconstitutional? And then, only if you get past the first two questions do you get to the third. Unlike Victoria, I don’t really think this case has any merit. I think it’s largely driven by the president’s desire to repeal the ACA via litigation rather than by ordinary legislation. And I think, as Marcia said a couple of days ago, scholars on both sides of the aisle have said as much.

So you’re saying this is just a big dustup over not much? Are you saying there’s not much for Democrats to be worried about here?

I wouldn’t say that, because it’s a very important statute. And obviously, if in fact the court does say there is standing and then does repeat what it said in the Sebelius case… And then comes the severability question. They could do that, but what happened is the Republican Congress pulled out one thread from the statute, and then you have to suppose that the statute completely unraveled because of that threat. And I find that rather unlikely.

Marcia Coyle, welcome to weigh in on that. But while we’re talking about the president, I want to come back to the conversation between Senator Leahy and Judge Barrett over whether the president is above the law. I think at one point, he just flat out asked her, “Is the president above the law? Is anyone above the law?” And she said no, but then when he tried to get into more specifics about the Emoluments Clause and any laws the president may or may not have broken, she wouldn’t go there. But what did you hear there?

Well, I think she’s been very careful all along on any issue that touches on politics or issues that obviously could come before the Supreme Court. What struck me is sometimes she seems a little too careful. I remember from yesterday, we didn’t discuss this, but it surprised me a little bit that she would not answer straight away two questions, I would say. One question had to do with whether it’s against the law to intimidate voters at the polls. It is. I mean, there’s a statute that prohibits that. And then, there was another question about whether the president can delay an election or postpone an election. And there too, there’s a lot of guidance in the Constitution as to who has the authority to do what when it comes to elections. And that authority primarily rests with Congress and the states.

And even if she didn’t want to answer directly whether yes or no that the president could postpone an election, she could have expounded a bit for the public on what is in the Constitution and statutes that would help [inaudible 00:33:26]. And especially since these are issues that are obviously on the minds, not only of politicians, but of voters, and they’ve been reading about it in the newspapers, et cetera. So at times, she seems a little too careful. And she had said, I think on those two questions that I just mentioned, that one, she couldn’t answer a hypothetical set of facts, and the other that she would need the course of litigation briefs, arguments. But I think that the answers are quite a bit clearer. So in some sense, Judy, she is sharing a lot of what she knows about the law, but not so much areas that could be politically sensitive. Those two questions relate to President Trump, obviously, and he nominated her.

Sai Prakash, could she have been more forthcoming on these things, and other things as well?

I was struck by Marcia’s comment and the judge’s response to the election delay. I think there is some sensitivity on her part to say some things that contradict what the president has said. Having said that, I think if you had asked her this in another context, she would have no hesitation in saying something along the lines that Marcia just said. So I think there’s just a heightened sensitivity to not get her to not say things that would run contrary to the president. But my sense is that once you’re on the bench, this temporary hesitation goes by the boards.

Sensitivity coming from where?

Sensitivity about the headline that will say-

Sensitivity about the headline that will say, “The President’s Supreme Court Nominee Contradicts the President.”

You mean on the part of herself and her legal team, is that what you’re saying?

Well, I mean, suppose that she had said the President has no constitutional authority to delay the election, which I think is the sensible answer, the only answer, then the headline would have been, “Uneventful Day, But Nominee Contradicts the President.” And so, I don’t think she wants that headline.

Victoria Nourse, what about this question of not trying to raise flags and make headlines?

Well, I think the metaphor for this hearing, which we will probably see on Saturday Night Live is the empty notebook page, because she’s not answering these questions that every lawyer knows. There’s only one answer to the peaceful transfer of power. And I also, I think Marcia is absolutely right when she says there are places that tell us in the constitution that Congress decides questions involving elections. There is text, but she’s not reading us that text. We got read text about from the 14th amendment about why felons can’t vote. And I think it’s a problem. I mean, I think that she has been coached not to say anything that might reflect badly, I suppose, on the President, as Sai says, but this is the most divisive president in history. I know of no president who has actually suggested he’s not going to honor an election and that is a deep threat to democracy. I think the American people deserve an answer to that, because there is only one answer in a democratic United States.

And I was just going to say it extended to questions about voting rights, and I can’t remember which senator brought this up, I think it was Senator Durbin who brought up voting rights and whether she could foresee voting rights being rolled back. And she was reluctant to go there. Marcia, I’m just understanding what’s the sensitivity. I mean, to many of Americans, I think it’s pretty settled that voting rights have been extended to African-Americans and to others. I mean, the barriers have come tumbling down over time, but there are still efforts to restrict the access to vote in this country, clearly that’s going on right now in the middle of this election. But from a broad, generic standpoint, what would be the harm in her saying, “I don’t think voting rights should will be rolled back.”

Well, I think that is an area where she has to be concerned about what may come before the court. I mean, we’re seeing almost every other day now at the Supreme Court emergency applications involving obstacles to voting and challenges to those obstacles. And so, I can see why she would be careful with what she says about voting rights. It was a little confusing, I think, for everybody listening when she tried to explain in her Second Amendment case how the right to vote is a civic right versus the Second Amendment being an individual right. And I think the senator, I think it was Senator Durbin, was trying to get at, “Well, are you saying one is…” Essentially saying, “Are you saying one is more important than the other or more protected than the other?”

And we’re not used to hearing the right to vote being called a civic right. It is a fundamental right. And John Roberts, as he pointed out, made that really, really clear during his confirmation hearings. And I think she could have explained that better, but it comes across as favoring one right over another under the Constitution, which just isn’t so. Roberts was absolutely right. He said, as has Justice Ginsburg said from the bench, “The right to vote is our precious right to vote,” and we don’t speak that often about other rights.

Excuse me. Sai Prakash, that was something that Senator Durbin tried to bore in on was several questions, trying to understand how she thinks about voting rights for felons versus their right to bear arms.

Yes, that was a very interesting discussion and so was the discussion with Senator Cruz. I think there’s a couple of things going on. One, as we know, there’s a big political dispute about restrictions on voting and one side views it as unconstitutional and the other side views it as constitutional. And as Marcia said, these cases are going to the court. I think she was making a sort of more nuanced point that Senator Cruz highlighted, which is that if you look at the text of the constitution, the Fourteenth Amendment makes it clear that states are able to restrict the right to vote when you’ve committed a crime or where you’ve engaged in rebellion. And that’s the point she was making. There’s nothing in the Second Amendment saying that you can abridge the right to keep and bear arms if you are a felon. And my understanding is that even Illinois prevents people that are actually in jail from voting. So, there are restrictions on voting across the states. The question is are they wise restrictions? Are they good restrictions? And that’s the political and legal debate we’re having now.

I want to bring our reporters back in on this question. Lisa Desjardins, we heard at great length yesterday, Senator Sheldon Whitehouse of Rhode Island speak about the groups that are behind, shall we say, conservative causes, bankrolling, an effort to get more conservatives on the court. He brought up as Senator Cruz was trying to make fun of it today. He was saying, “I don’t have a fancy chart with red yarn,” and so forth. But to what extent are there groups in the background on the right and on the left that have a lot invested in who gets put on the court and are putting a lot of money into it?

Oh, Judy, there is so much money. And I want to say, that’s a discussion about this year, but what we’re seeing in this confirmation hearing is something that conservatives have been working on for decades, starting with Ronald Reagan. This is something that activists in the Republican party especially have been looking for building up for decades. So, the money, recently of course, has expanded in all aspects of politics, including this one. And we’ve seen outside groups, some being very upfront about it, say conservative pro-life groups like the Susan B. Anthony List who have been supporting ads, some of them running ads, and then some that are less well known. And as Senator Whitehouse is saying that are in a gray area where we really can’t identify who exactly is behind their cause and their money, but the scale of the money in this issue in trying to influence this seat and this court, it is very difficult to describe.

It’s immense. One other point I want to make though is something that we’re just getting some reporting now. Senator Graham has held a gaggle with reporters outside the hearing room, and he said something very interesting that I’m getting from the pool that I wanted to pass on, talking about how he thinks this hearing is going. He says, “I’ve been very impressed with this hearing,” and he made a point that stood out to me. He said, “I appreciate the nominee not interrupting us during her hearing. Most of this has been an exchange between us, between senators. The times that we have talked with her, I also appreciate that she has been able to finish her thoughts.” And it’s not just a Pollyanna point, but I think I’m reflecting on the other thing that we’re covering so much right now, the presidential election, I’m thinking about these presidential debates, the one debate, and the vice presidential debate we’ve seen where it was the exact opposite. Where it was hard for Americans to get a sense of the thought from our leaders.

Here, it is very valuable and Lindsey Graham is pointing this out that you have senators discussing their approach openly, not interrupting one another and a nominee who’s not interrupting them. And it’s interesting too that he’s making a contrast specifically between Judge Barrett and Judge Kavanaugh, kind of implying Judge Kavanaugh interrupted, and that those hearings were more tense than they should have been. I’m sure not blaming only Judge Kavanaugh, a justice now, but making a distinguishing point here about this hearing right now.

And in this particular political climate, and John Yang, it is a reminder that Judge Kavanaugh, or now Justice Kavanaugh in his confirmation hearings, there was a huge controversy at that time, over his nomination over allegations of things that had happened when he was a high school student. And that hearing was one of the most evasive I guess we’ve seen in a long time, going back to Robert Bork back in the 1980s.

John Yang: (01:54:30)
That’s right. And it was very emotionally charged. You saw then Judge Kavanaugh really forcefully defending himself. At the time, the interpretation was that he was trying to prove his toughness to President Trump, that President Trump, the reporting was thinking about polling the nomination and wanted to see Kavanaugh fight for himself. And it’s actually Kavanaugh’s performance. You heard Senator Whitehouse referred to an ethics investigation that was underway, that was preempted by by Judge Kavanaugh’s elevation to the Supreme Court when he was on the D.C. Circuit. But it’s important to note that those complaints against him stemmed from his behavior in the confirmation hearing. It wasn’t as if there were ethics complaints about his behavior on the D.C. Circuit before. These complaints were filed in the course of the confirmation hearing. And it did indeed, once he was no longer on the D.C. Circuit, they no longer had the jurisdiction to investigate them.

And with Judge Barrett, we have, just making a contrast with then Judge Kavanaugh, a nominee who doesn’t seem to have, Victoria Nourse, doesn’t seem to have skeletons in the closet, if you will. I mean, they seem to have gone back over her life, and it’s pretty impressive, her career as a professor and then as a judge. There aren’t many things they can pick at other than trying to determine what her judicial philosophy is.

Right. The only weak point that she has is she’s never really been a lawyer for very long. I mean, she’s been an academic and a judge, but I do think it’s interesting that Lindsey Graham is talking about the decorum of the hearing, because of course if you want to understand senators, look at the state that elects them, and he is in a very tough reelection campaign right now. So, it’s not surprising that-

Go ahead. Yeah, go ahead. I’m sorry

That he would point out the decorum and that he’s capable of reaching across sides, because the President’s behavior in the last debate was very difficult for many Americans to watch and really turned them off.

Sai Prakash, we’re watching today’s hearings, and as we mentioned, you’re going to be testifying in her behalf as a witness tomorrow, but it does remind us that for the justices who have come before the senate for confirmation, the outcome for whom there really hasn’t been any question. And I think for this one, isn’t a question, as divided as the country is, and as divided as the Senate is, there still a Republican majority. How much difference does it make once these confirmed justices get to the court, whether they were confirmed unanimously, or with only a couple of negative votes, or whether it was a divided Senate vote as in the case of Judge Justice Kavanaugh?

That’s a great question, Judy. From one perspective, a win is a win and getting on the court is an accomplishment for their careers. So, I don’t know if they’re really going to focus on the vote in particular. Having said that, I think I wouldn’t be surprised if there are some judges who had to wait a long time or some justices who had to wait a long time or faced very, very tough opposition who might be smarting at that experience. But I can’t say, I don’t… I think for the most part, judges are happy to receive a promotion or receive the job, and they’re not going to look back and think about how close the vote was or what questions were asked.

Marsha Coyle, what about that? I know you’ve looked at the court. Once they’re out of the Senate, once they’re confirmed, whether it’s 51 to 49 or 100 to nothing, does it matter once they’re on the Supreme Court?

They do their job. Judy, I was thinking about this last night, actually. I was thinking how if Judge Barrett is confirmed, as she will be apparently, we’ll have four justices on the court who came to the court under some sort of a cloud. You have Justice Clarence Thomas and the Anita Hill sexual harassment allegations. You have Justice Neil Gorsuch, who is in a seat that many believe was President Obama’s to fill. You have Justice Kavanaugh who had the sexual assault allegation, but perhaps more importantly, had a truly partisan tinged response to the allegations that were being made against him. And then Judge Barrett, who’s cloud is of a different sort, it’s a process cloud.

No one seems to really like the fact that the Senate is rushing through this nomination in the middle of a presidential election campaign, or actually no longer a campaign, people are actually voting. So, I thought that’s rather remarkable. And I don’t know if it really has any long-term effect, but it’s certainly something that affects how I think people might view the Supreme Court and the legitimacy of individual justices, at least for a time. And maybe with time, they forget what transpired with a confirmation hearing. But at the moment, I mean, for in a relatively short period of time, under some sort of a cloud is rather remarkable, I think.

What about that Victoria Nourse, how much does that affect what we see from these justices on the court or does it?

I think that’s a great point by Marcia, because this is very unusual. I mean, there have been justices who’ve had difficult confirmation hearings in the past, but now we have four with these clouds and it will affect the chief, because the chief will-

Speaker 3: (02:01:02)
Hearing will come back to order.

I’m going to interrupt you and we’re going to go right back to the hearing. Thank you all.

[crosstalk 02:01:07].

Back to the hearing back from their lunch break and the questioning resumes.

Amy Klobuchar: (02:01:14)
By reminding friends at home-

From Senator Amy Klobuchar of Minnesota, a Democrat.

Right now, we are in the middle of the pandemic and people are sick. We are in the middle of the election and people are voting. And yet, here we are stuck in a nomination hearing. I know what my constituents care about, what they’ve been calling and writing me about. And that is-

And just a quick interjection, we are going to start preparing for the NewsHour, but please stay right where you are. Our uninterrupted coverage will continue on PBS stations and online on our website and social media channels through the conclusion of today’s hearing. I’m Judy Woodruff, thanks for joining us and please stay with the hearing.

Family from Minneapolis mom was diagnosed with breast cancer. Janet from Rochester, whose brother has a mental illness, or Christie, a mom from Bloomington, whose daughter had a tumor. That is what is on the line. Healthcare is on the line. And Judge, that’s what’s on the line in your nomination hearing, which unfortunately has been plopped in the middle of this election. This morning, you had, I would call it an academic discussion with Chairman Graham about the doctrine of severability. And that’s about if you can uphold part of a statute, but throw out another part of it. And you correctly said there was a presumption to say the statute, if possible.

So, I want to be really clear with the American people that the Trump administration’s own brief, this is the position of the Trump administration filed by the Trump Justice Department says that the entire Affordable Care Act must fall. That is the position of the Trump administration going into this case that’s going before the Supreme Court in a few weeks. Now, Judge, you clerked at the Supreme Court, does the Justice Department brief that they have filed represent the administration’s and therefore the president’s position before the Supreme Court?

The solicitor general is the government’s advocate before the court.

Right.

Yes, that would represent the United States.

Right. And if the brief didn’t represent the President’s position, he would have the the solicitor general and the Justice Department withdraw the brief, is that right?

I believe so, yes.

Okay. I just Wanted to make that clear to the Chairman and to everyone out there that while there is this doctrine to separate stuff and to try to uphold part of the statute, like maybe pre-existing conditions or doing something about keeping your kids on the insurance, the position of the Trump administration is to throw the whole thing out. The second thing I want to make clear is that you have been nominated to the highest court in the land and you will be the deciding vote in many cases that will affect people’s lives. And I appreciated that you’ve said it’s not the law of Amy. It’s not your law. But the point is is that you will be in a really important position. I think that’s one of the reasons that they’re trying to ram through this process right now. And while you’re not saying how you’re going to rule on cases, as I said yesterday, I’ve been following the tracks and the only way for the American people to figure out how you might rule is to follow your record and to follow the tracks.

And we know this, you said you consider Justice Scalia one of the most conservative judges in our nation’s history as a mentor. You’ve criticized the decision written by Justice Roberts upholding the Affordable Care Act. In a 2015 NPR interview, you praised the dissent by Justice Scalia in another Affordable Care Act case saying the dissent had the better of the legal argument. You signed your name to a public statement featured in an ad that called for an end to what the ad called the Barbaric Legacy of Roe V. Wade, which ran on the anniversary of the 1973 Supreme Court decision. You wrote your own dissent disagreeing with longstanding court rulings on gun safety, expressing your legal opinion that some felons should get guns. And you once discussed a dissent in the marriage equality case, asking whether it was really the Supreme Court’s job to make that decision.

So, to me, these tracks lead us to one place. And that is that you will have the polar opposite judicial philosophy of Justice Ginsburg. And, to me, that would change the balance of this court, which is already 5-4 and known as very conservative when you look back through history to 6-3. 6-3. And that would have great repercussions for the American people. So, I wanted to follow up on something that Senator Harris and I asked you about yesterday and that is the issue of whether or not you understood the President’s clear position on the Affordable Care Act before you wrote the article in which you criticized the legal reasoning for upholding the Affordable Care Act. The President tweeted just one day after you were nominated, that would be September 27th, that it would be a big win if the Supreme Court strikes down the health law. But before you were nominated, and this is what we showed yesterday, Donald Trump tweeted promising that his judicial appointments will do the right thing on Obamacare unlike Justice Roberts.

Yesterday, you were asked by Senator Harris, “Prior to your nomination, were you aware of president Trump’s statements committing to nominate judges who will strike down the Affordable Care Act?” You said, “I can’t really definitively give you a yes or no answer. What I would like to say is I don’t recall hearing about or seeing such statements.” And after she followed up, you said that, “The tweet wasn’t something that I heard or saw directly by reading it myself.” Okay, so I just want to go through some of the things that have happened over the last few years regarding the President’s, really his obsession to repeal Obamacare. He said, “We will repeal and replace disastrous Obamacare,” when accepting the Republican nomination at the Republican Convention in 2016. Did you see that speech?

At the Republican Convention-

In 2016. I’m not asking if you were there, I was asking if you saw it on TV.

No, I don’t believe I watched any of the Convention on TV, or if I did, I don’t remember any of it.

He has said things like, it begins he wants to immediately repeal and replace the disaster known as Obamacare. He has said that he wants to get rid of it. He has said in States of the Union, “I am calling on Congress to repeal it.” He said, “Can you believe that Mitch McConnell who has screamed repeal and replace for seven years couldn’t get it done?” So, there have literally been hundreds of statements by him, by my colleagues. And I just find it hard to understand that you were not aware of the President’s statements.

I am aware that the President opposes the Affordable Care Act. I’m aware that he has criticized the Affordable Care Act. I took Senator Harris’s question yesterday to be referring to the specific tweet, maybe the one that you have behind you, about how he wanted to put a justice on the court to replace Obamacare. And I’m definitely aware of that tweet now. And as I said to Senator Harris yesterday, it came up in some of my calls with democratic senators, brought it up. But I honestly can’t remember whether I knew about it before I was nominated or not. I’m not sure

Did you have then a general understanding that one of the President’s campaign promises was to repeal the Affordable Care Act when you were nominated?

I, as I said before, I’m aware that the president opposes the Affordable Care Act.

Well, I know you’re aware now, but were you aware back then?

Well, it seems to-

When you were nominated,

Well, Senator Klobuchar, I think that the Republicans have kind of made that clear. It’s just been part of the public discourse.

Okay. Is the answer yes then that you were aware of-

Well, Senator Klobuchar, all these questions, you’re suggesting that I have animus or that I cut a deal with the President. And I was very clear yesterday that, that isn’t what happened.

Were you generally aware of the President’s statements when you wrote in an article in the University of Minnesota Law School Journal in 2017, the same year that you became a Seventh Circuit judge, that he pushed the Affordable Care Act beyond its plausible meaning to save the statute that Justice Roberts had done that? Were you aware of the President’s statements when you wrote that article?

So, that article, Senator Harris told me yesterday was published in January of 2017 and a law review article takes several months to go into production. So, I can’t remember specifically when the conference was. That article came out of a conference for Randy Barnett’s book. I can’t remember what it was, but I suspect it was before the election. It’s not like I wrote it in January of 2017.

Okay, but President Trump has been saying this in 2015, in 2016 and that’s two years. It didn’t take you that long to write the article. So, my question is simply, were you aware of President Trump’s opposition to the affordable care act during that time?

Senator Klobuchar, I have no idea. And I suspect that if the article was published in January that I wrote it sometime before the presidential election. And again, I want to stress, I have no animus to or agenda for the Affordable Care Act. So, to the extent you’re suggesting this was like an open letter to President Trump, it was not.

Okay. In the 2017 University of Minnesota Law School Journal that we just discussed, one of the things you said is, “There is a risk that a faction can run away with the legislative process, but there is also a risk that a faction will conscript courts into helping them win battles they have already lost fair and square.” Is that something you wrote in that article?

I did. I was responding to an argument made by Randy Barnett in his book, our last consti… No, I don’t know if it was our last constitution or not, but yes.

So, I mean, that is what I’m afraid has happened here. They have tried 70 times, the Republicans in Congress, to overturn Obamacare. And now, they are bringing this case to the court and you are going to be sitting on the court. And I find it very hard to believe that you didn’t understand that when you wrote the article. So, I want to… There’s one other piece of this, and that is the effect on the economy. And we all know this has been very difficult, my colleagues know this. According to one Yelp study, more than 800 businesses have closed every day, 30 million people were out of work at the height of the pandemic.

We’re still down 10 million jobs. And so, one of the things that’s been going on here is we’ve seen more and more consolidation and leading me to antitrust. And that part of this I think is the COVID relief package we have to pass, but also antitrust. Competition is a driving force of our economy. Justice Ginsburg, at her nomination hearing, described the Sherman Act as a broad charter. She said that, “Free enterprise is the spirit of the antitrust laws and the courts construe statutes in accord with the essential meaning that Congress had for passing them.” Do you agree with her statement?

The Sherman Act is broadly worded in so far as it prevents contracts, combinations, and conspiracies in restraint of trade. And because that language is broad, courts have developed a robust doctrine of common law to enforce and bring about its promise of eliminating contracts, conspiracies, and combinations that restrain trade.

Yes, and I think you and I have discussed this before, but in recent years, Supreme Court opinions, by the way, all decided over Justice Ginsburg’s dissent have made enforcing our antitrust laws even more difficult. As a textualist, how would you reconcile the broad language of the Sherman Act with recent judicial precedent that has substantially narrowed the application of the statute in practice?

Let’s see, I can say as a textualist, how I would approach the Sherman Act, and in the case of the Sherman Act, you’re right that it’s broad language. The text of the Sherman Act, as the court has determined over time, essentially permits the court to develop a common law. So, I haven’t really had occasion to decide very many antitrust cases on the Seventh Circuit, but it’s an area, because it’s largely been left to judicial development that is controlled by precedent for the most part.

It is. And that’s my concern right now is that it has been so narrowed in its interpretation of the Sherman Act, the Clayton Act that it’s almost become impossible for people to bring those cases in any big way. I want to turn to something we talked about yesterday, which is elections. You worked on the recount in Florida that was related to the Bush v. Gore case, including on an absentee ballot issue on behalf of the Republican side of that case, is that right?

I did work on Bush v. Gore. I did work on behalf of the Republican side. To be totally honest, I can’t remember exactly what piece of the case it was and there were no more challenges.

Don’t worry, I’m not going to ask you that.

Okay.

We’re in the middle of a global pandemic that is forcing voters to choose between their health and their vote. Are absentee ballots, or better known as mail-in ballots, an essential way to vote for millions of Americans right now?

That’s a matter of policy on which I can’t express a view.

Okay. To me, that just feels like a fundamental part of our democracy, but okay, let’s try this. Have you ever voted by mail?

I can’t recall a time that I voted by mail. It may be in college that I did when I was living away from home, but I can’t, as I’m sitting here specifically, recall a time I voted by mail.

Do you have friends or family that have voted by mail or are voting by mail?

I have had friends or family vote by mail.

And you understand we’re operating in a moment where the President is undermining vote by mail, even though a number of Republican governors and Republican senators are supportive of it. Many argue that Bush v. Gore, and back to your earlier work, hurt the court’s legitimacy. If you are confirmed, the Supreme Court will have not one, not two but three justices, you, Justice Kavanaugh, and Chief justice Roberts who worked on behalf of the Republican party in matters related to the Bush v. Gore case. Do you think that that’s a coincidence?

Senator Klobuchar, if you’re asking me whether I was nominated for this seat, because I worked on Bush versus Gore for a very brief period of time as a young associate, that doesn’t make sense to me.

I just think it’s such a coincidence to me. I actually didn’t know it until yesterday, but will having justices with this background, two of whom were appointed by the current president decide any cases related to the upcoming election, do you think that will undermine the legitimacy of the court?

Asking whether something would undermine the legitimacy of the court or not seems to be trying to elicit a question about whether it would be appropriate for justices who participated in that litigation to sit on a case rather than recuse. And I went down that road yesterday saying, it’s an illegal question-

I know, you said you wouldn’t recuse. That’s why I thought it was-

That isn’t what I said. I said it-

You’re right. You said you wouldn’t announce your decision on recusal and you wouldn’t commit to recusing. But again, I think the public has a right to know that now three of these justices have worked on the Republican side on a major, major issue related to a presidential election. One thing I wanted to revisit quickly, Smiley v. Holm. The reason I asked about that is that this would be unprecedented when we, right now, we’re in an unprecedented time where we have a president who refuses to commit to a peaceful transfer of power, working to undermine the integrity of this election. And yesterday, you wouldn’t commit to recuse yourself from the case we just talked about, but now we’re considering your confirmation to the highest court in the land in the midst of this election.

And in Smiley v. Holm where the Supreme Court held that a governor is part of the legislative process and therefore a legislature cannot unilaterally change election rules, that could be very important, because we have a number of swing states where we have legislature of one party, governor of the other. And we have this precedent that has been on the books for nearly 90 years. Do you think that that is established Supreme Court precedent?

It’s-

It said that a governor is part of the legislative process.

I actually am not familiar with that case, but it is precedent. Obviously, it’s a precedent of the court,

Okay. I wanted to turn to one last issue and that is First Amendment and freedom of the press, near and dear to my heart. My dad was a journalist. He would go everywhere for a good story and cared a lot about freedom of the press. And regrettably, our right to a free and independent press is under assault. We have witnessed unprecedented attacks on journalists and journalism in the past several years. Our President frequently uses his Twitter account to attack news organizations. He has accused the media of being fake news and called them the enemy of the people. Obviously, we also have journalists overseas that are under attack by dictators. I want to pay special tribute to those brave journalists whose dogged pursuit of the truth never wavered despite threats of imprisonment, violence, and even death, journalists like Jamal Khashoggi and the men and women of the Capital Gazette. Their legacy is proof that fear will not silence facts. The founders recognize that a free press is vital.

Sen. Klobuchar: (02:20:03)
… facts. The founders recognize that a free press is vital to a vibrant and strong democracy and that’s why we need Supreme Court justices who understand the importance of protecting the right of journalists. First Time v. Sullivan, you know that’s the landmark ruling with the support of the First Amendment, protections for the press and protecting journalists, unless they say something untrue with actual malice.

Justice Thomas has expressed skepticism with that case, writing in his concurrence in McGee v. Cosby, that, “If the constitution does not require public figures to satisfy an actual malice standard in state law defamation suits, then neither should we.” Do you agree with Justice Thomas that the court should reconsider the actual malice standard because it is inconsistent with the original meaning of the constitution?

Well, Senator Klobuchar, I can’t really express a view on either New York Times v. Solomon or Justice Thomas’s critique of it without violating the principle that I’ve repeatedly stated, that all nominees follow that I can’t comment on matters of litigation or grade precedents that the court has already decided.

I also want to ask you about how journalists have been deterred from doing their jobs under the threat of jail time. After the Supreme Court’s 1972 decision in Brandenburg v. Hayes, many federal courts of appeals have recognized what’s called the Reporter’s Privilege, which protects a reporter’s First Amendment right to protect his or her sources from disclosure in certain circumstances. The Seventh Circuit, by the way, in which you serve, has rejected a constitutional basis for Reporter’s Privilege. Under its original public meaning, does the First Amendment protect a reporter’s decision to protect a confidential source?

Well, again, that would be eliciting a legal conclusion from me, which I can’t answer in a hypothetical form in the hearing. It’s also a question, as you point out, that’s closely related to ones that are being litigated.

Okay. One last try. Do you agree that if reporters cannot protect their sources, they are less likely to be able to find confidential witnesses willing to share information, confidential informers willing to share information about issues of public importance?

Well, Senator, that would both be a policy question, a matter of public policy, which I can’t express a view on. And presumably also one that might factor into the question of what the First Amendment protects. So again, that’s not something that I can give an opinion on in this context.

Okay. I guess my last thing I’ll just say is, I hope people watching out there are going to follow the tracks of this record and are going to vote. Thank you.

Sen. Graham: (02:22:36)
Thank you. Senator Sasse.

Sen. Sasse: (02:22:37)
Thank you, Chairman. Welcome back Judge Barrett. Let’s start with how judges should look back on their career at the end of it. So if you are confirmed, 30 or 40 years from now, when you hang up your robe and sit on a front porch in South Bend or wherever, probably with a big gaggle of grandkids around you, how will you judge whether or not you had a successful career as a judge and justice?

I would judge whether I’d had a successful career by whether I’d always acted with integrity, whether I’d always followed the rule of law and resisted the temptation to twist the law in the direction that I wanted it to go, whether I had treated my colleagues kindly and with collegiality, whether I had mentored health and had good relationships with my clerks and any assistants or staff that I had, because both the law and the people are important.

Sen. Sasse: (02:23:38)
And how would that differ from how a Senator should look back on her or his career after hopefully not 30 or 40 years, but in my view, 12 would be a good limit, but how should senators look back on their career and how does it differ from judges?

Well, let’s see. So I probably can’t say how a Senator himself or herself would, but I’ll say as a citizen, how I might evaluate a Senator’s career at the end of it. And that would be to say, did he pursue good policy? Did he sponsor legislation or vote for legislation that advanced the cause of the common good in the United States?

Sen. Sasse: (02:24:11)
So I think, when you corrected my question so that you didn’t even pretend there was a hypothetical where you saw yourself as a Senator, I heard both Todd Young and Mike Braun just have these huge gasps of relief at the thought that you’re not going to be running for Senate from Indiana at some point.

Sen. Sasse: (02:24:28)
I think it’s been clear in our conversations over the last three days that a number of us who are excited about your originalism and who believe the job of a judge is very different from the job of a policymaker. Don’t think that polling has any place in the questions before us at this point, but it is sort of hard to sit here after three days and hear claims made over and over again about how much the American people are opposed to you or whatever. So even though polling should have no place, just as a matter of correcting the record, I did happen to look up this morning and the American people are overwhelmingly in favor of your confirmation.

Sen. Sasse: (02:25:11)
So just since this record seems to have been distorted so repeatedly with this idea that the American people are opposed to this, the public view of your confirmation is overwhelmingly in favor. I think plus 17 in the polling of this morning. But anyway, certainly don’t want you to comment on that.

Sen. Sasse: (02:25:28)
I’d like to transition to your writings a little bit. You again are a prolific writer. I think Justice Briar is the only person currently sitting on the court that I can see that looks like he’s written more than you have. And he’s got a few decades of extra time as an adult writing relative to you. Can you tell us how you think your writing might change in the future? How will you pick venues, topics, audiences? What will you write about as a justice? Again, presuming confirmation.

Yes. So I would say, most of my writing was during my time as a full time law professor. The only thing I have published, I think, since being confirmed to the bench was I published a lecture that I gave at Case Western. And then I edited a transcript of remarks that I gave on a panel, but it wasn’t a full length article with an idea. I found, frankly, that it’s hard to manage all the demands of family life and the job and writing the kind of scholarly articles that I did in the past.

If I remained on the Seventh Circuit and perhaps if I’m confirmed at some point in the Supreme Court, I would like to do more of that, but more in the vein of say what Justice Briar does now or what my colleague, Judge Frank Easterbrook does, which is writing that is designed to educate about ideas. I think Justice O’Connor’s iCivics program, where she really set herself out to teach high school students and people in America about civics and how the civics process works. So I would see myself wanting to try to reach more general audiences, but if I have time, once my kids get a little bit older, maybe I’ll dip back into scholarly writing again.

Sen. Sasse: (02:27:19)
I think that’s very helpful. I think it would be very useful if we had justices who did more of that civics education. You’ve named a few. I think there are some others, over the last 30 or 40 years, who’ve also done a lot of public civics education. I differ with former Chairman Grassley of this committee about whether cameras would be a good idea in the court. Again, not asking you to opine on that. I’m glad we get the audio transcripts. I’m glad we have a lot of press that cover the court. I think we’d get a lot more Michael Avenatti nonsense if we had cameras in the court.

Sen. Sasse: (02:27:52)
I think we right now get a lot of transparency into the court, but we don’t have as much theatrics from those who are arguing before the court. So I think more cameras in the court is a bad idea. More justices before the public explaining the structure of our constitutional system would be a huge asset. And given your history with Notre Dame students and law students, it seems like a natural fit for you. So for what it’s worth, I think you have a lot of people who would encourage you to take up that civic calling.

Sen. Sasse: (02:28:21)
To tackle a few of those constitutional structural questions for a popular audience, can you explain what the Ninth Amendment is about? Why do we have it?

Well, it’s often treated as a rule of interpretation. There’s not a lot of substantive doctrine or any substantive doctrine under it. It’s preserving. It says that the individual’s rights are preserved, that those not expressly granted aren’t taken away.

Sen. Sasse: (02:28:50)
And if we maybe broaden it from just the Ninth amendment to the Bill of Rights in general, why do we have one and what would be different in our constitutional structure if we didn’t have the Bill of Rights?

If we didn’t have a Bill of Rights, we wouldn’t have particular rights singled out for special protection. As I’m sure you know, Senator, the Bill of Rights was added in 1791 because during the debate about the ratification of the original Constitution, many states objected to the fact that there was no Bill of Rights. The original idea, when the original Constitution, and by that, I mean beginning with Article One, moving up, was that the very structure of government protected rights. And there wasn’t thought to be a need to have a Bill of Rights because it was thought that the separation of powers and the structure of federalism would be a protection for those rights. But those who really felt like they wanted the additional protection, the Bill of Rights prevailed and James Madison drafted them and they were ratified in 1791.

Sen. Sasse: (02:29:53)
So I don’t mean to put words in your mouth. I mean to lay out a hypothesis so you can expand upon it or correct me, but is it fair to say that most governments in human history have had a default assumption of prohibition? Governments can do whatever they want and citizens don’t have rights unless governments proactively give them rights. The default assumption is you don’t have freedom of religion in most governments across time and space. You don’t have the freedom to start a business. And the American system starts with the opposite assumption, which is that freedom is the default condition. People are created in the image of God with inalienable rights. These are pre-governmental rights and the government has to have specifically enumerated powers. We, the Congress, have to authorize Article Two branch, the Executive Branch to go ahead and do anything. And if they don’t have those authorities, in the Executive Branch and the Administrative Agencies, they can’t do anything unless Congress gives them the freedom. And the people’s default assumption is freedom.

Sen. Sasse: (02:30:51)
And so our system is to flip the historic prohibition assumption and we have a freedom assumption on people and a prohibition assumption on government. And so prior to the Bill of Rights, the structure of the Constitution was saying that we don’t need to enumerate rights because the assumption is you have a right, unless a prohibition has been created. Is that a fair way to think about it? And how would you expand upon it more eloquently since you teach this stuff?

You are far more eloquent than I, Senator Sasse. I think that is an accurate description of how the assumptions underlying our Constitution. That the assumption was that if Congress had limited power, it wouldn’t have the ability to infringe rights in the first place. And of course at the time the Constitution was ratified, the states were thought to have… Because the people are closer to their state governments… Well, that’s the point of federalism, right? That citizens can have different policies in states and more influence over their state governments and their state legislatures than the federal government.

Sen. Sasse: (02:31:58)
What role does the Declaration of Independence play in interpreting the Constitution or what’s the relationship between the two documents?

Well, the Declaration of Independence is an expression of our ideals, expression of our desire to be free of England. It’s not law, however. The Constitution is law. So the Constitution is our foundational law and governing document. And, while the Declaration of Independence tells us a lot about history and about the roots of our Republic, it isn’t binding law.

Sen. Sasse: (02:32:37)
What are the five freedoms of the First Amendment?

Speech, religion, press, assembly… Speech, press, religion, assembly. I don’t know, what am I missing?

Sen. Sasse: (02:32:53)
Redress or protest.

Okay.

Sen. Sasse: (02:32:56)
Why is there one amendment that has these five freedoms clustered? Why do they hang together?

I don’t know what you’re getting at on that one. You mean what is the common denominator?

Sen. Sasse: (02:33:08)
Yeah. I mean, why… I’m getting back to the same idea that the Bill of Rights was sort of an attempt to do public catechesis. It was an attempt to say, “We already believe in limited government.” We, the founders. That’s the brilliance of the Miracle at Philadelphia, despite all the failures to live up to our ideals. But the 1787, 1788 conversation was to say, “We believe in limited government because we believe in the limitless rights of people.” And so they didn’t have a Bill of Rights, but later when they started spelling it out, it’s sort of like they got jazzed up trying to work this out for the American people. “This is amazing stuff.” And so I just wanted to hear you reflect a little bit on the glories of the First Amendment, even though it wasn’t needed as a part of the structure at the beginning, once they added it. Why five of them in the same amendment?

I don’t know why actually as a historical matter, those were grouped. I’m sure there’s a story that I don’t know there about why those appeared in the First Amendment all together, rather than being split up in different amendments. I mean, assembly and protest and speech bear more relation to one another than necessarily free exercise, say. But I think, they are in the First Amendment, and I think that that reflects that those were core values, that reflects that the states who ratified the Constitution, the original Constitution on the understanding that a Bill of Rights would be added, wanted protections like that to be included because they were really core to what the new Americans thought was going to be America.

Sen. Sasse: (02:34:49)
Thank you. I agree with you. And I think that some of why it’s so useful to think about the five together in my mind is because you don’t really have freedom of religion if you don’t also have freedom of assembly. If you can’t gather with your co-religionists. You don’t really have freedom of speech, if you can’t also publish your beliefs and advocate for them. You don’t really have any of those freedoms, if you can’t protest times and seek the redress of grievances in times when government oversteps and tries to curtail any of those freedoms.

Sen. Sasse: (02:35:21)
And I think some of the important questions about judicial modesty in some of the last three days of hearings are very relevant and prudent to have had, but I also think there are times when there’s been questioning that you’ve been put through that has implied that, because you have free assembly rights as an individual when you were a faculty member or as a wife and mom and neighbor in South Bend, when you signed something walking out of church, that sort of implied that there was something inappropriate when the default assumption in our system is that we all have these freedoms because the civil society associations that we have, are where we actually find happiness, meaning, joy and love.

Sen. Sasse: (02:36:04)
One of the things that, not just judges wearing robes need to have to demonstrate humility, but all of us in our day callings as public servants for a time, but who are eventually going to go back home to the Cincinnatus language of George Washington’s farewell address to go back and sit under the tree at Mount Vernon is that, this is not the center of the world. This is not… The institutions of power are not where meaning is found. The institutions of power are about serving the people by trying to maintain a framework for ordered liberty. So that the places where the 330 million Americans actually live can be the center of life and meaning, and association and religion and speech and press. That the heart of our system is actually volunteerism, entrepreneurship, community, neighborliness, and love. And power is just in service of that.

Sen. Sasse: (02:36:52)
Washington, and later, Lincoln’s expansion upon it, was the idea of the silver frame but the golden Apple. The silver frame that is the constitutional structure is just to maintain the structure of ordered liberty so that people can pursue the good, the true, and the beautiful, the happy and the neighborly in the center of the picture, because that’s where love and community is found.

Sen. Sasse: (02:37:13)
I’d like to pivot from constitutional structure to baseball for a minute, if you’ll bear with me. Any of your kids play baseball or softball?

Two of our boys had a very brief career in baseball.

Sen. Sasse: (02:37:25)
Got you. Well, it’s obviously not as great a sport as football, but we can still call it the American pastime. And I’d like to talk about the Houston Astros who are miserable cheaters. Sorry, Cornyn and crews, but both of the Texas senators sit on this committee. But I think all baseball fans know that the Houston Astros cheat. They steal signs. They bang on cans. They’ve done a whole bunch of miserable things historically, and they deserve to be punished probably more than they have been. But tonight is game four.

Speaker 4: (02:38:01)
Thank goodness the First Amendment protects that right, for him to bequest that erroneous opinion.

Sen. Sasse: (02:38:06)
If you want to defend cheating, that is certainly the prerogative of the senior Senator and the junior Senator from Texas now rushes into the room to do some homework-

Sen. Graham: (02:38:14)
It was going so well.

Sen. Sasse: (02:38:17)
I noticed that Ted is wearing a lone star state flag, but not an Astros mask.

Sen. Sasse: (02:38:25)
Tonight is game four in the American League Championship series. And if Houston loses to Tampa, they will be done. That leads people to feel kind of desperate at times. There are times when you have a game that’s your elimination game, you can imagine people wanting to sort of reconsider anything they can reconsider. The ends might justify the means. And you could imagine that the Houston Astros who’ve cheated in lots of ways in the past with sign stealing might try to go to the umpire and try to persuade somebody to expand the strike zone just for Houston in the game tonight. That would obviously be inappropriate. Right?

Right.

Sen. Sasse: (02:39:10)
We can’t have two sets of rules. Well, I think that an umpire is obviously supposed to apply rules fairly to both teams. I think we can all agree on that as rules of fair play. And I think some of what we’ve seen in the questions over the last three days are trying to get an umpire to commit to a different set of rules for different teams. And so for what it’s worth, just to reiterate what I think so many of us have been trying to argue for in these hearings is, the alleged equivalency between Republican and Democratic questioning here implies that Republicans have been trying to get you to pre-commit to certain policy outcomes. And I just don’t think that that’s actually what’s been happening in this hearing.

Sen. Sasse: (02:39:56)
I think that the originalism that you’ve defended and that a lot of us have been advocating for in advance of, and during this hearing, is not a request for Republican policy positions to be advocated through the courts. It is rather a plea, not just to you and to future nominees, but to our Democratic colleagues as well, to embrace a system where we again distinguish for the American people between the two political branches and the apolitical branch. The fact that you are before us to be confirmed to a lifetime appointment where you will put on a black robe is a liturgical act where you’re cloaking your policy preferences in humility.

Sen. Sasse: (02:40:36)
It is obviously the case that we’re all shaped by life experiences. It is obviously the case that people have lived in communities in the past. And most people who end up as extraordinary jurists been connected to or around the political process at different points in their career. But that is not to undermine the ideals we have in the American system that judges should not see themselves as super legislators, they should not see themselves as policy advocates, and they do have to take up this new oath to a greater humility. And it means that you lay down certain freedoms that are inalienable and innately yours prior to becoming a judge so that you don’t have the appearance of bias and impropriety in the future.

Sen. Sasse: (02:41:21)
And so I want to reassert the idea that we should be trying to excise from our language, this idea of conservative and liberal blocks on the court, Republican and Democrat justices, what we want, and I want this to not just be a Republican aspiration, but I want it to be a Democratic aspiration as well again. What we want are people on the court who understand with humility and modesty the judicial role, because it is a limited role. It is not a role to right all wrongs in society. It is not a role to be a policy advocate. And I think you’ve comported yourself extraordinarily well over the last three days, as you’ve been repeatedly asked to be an umpire who prejudges certain cases, and it isn’t your job to do that until the reactive moment when you’re actually on the court. So thank you for the civics lesson that you’ve offered Americans over the last three days. Thank you, Chairman.

Sen. Graham: (02:42:15)
Thank you.

Sen. Cruz: (02:42:15)
Mr. Chairman.

Sen. Graham: (02:42:17)
Yes. Here we go.

Sen. Cruz: (02:42:19)
Mr. Chairman, I was tempted to make a parliamentary inquiry if the unjustified broadside from the Senator from Nebraska violates Rule 19 of this body. But I decided not to when I came to the realization that Nebraska lacks a professional baseball team and at times doesn’t always have a winning football team either. And so I view it more as a plea for help than a substantive point. And I will say the remainder of the Senator from Nebraska’s questions and exchange with Judge Barrett, I thought was excellent and a wonderful civic education for all Americans. The scurrilous lies about the Astros, I think should be stricken from the record and forgotten by all.

Sen. Sasse: (02:43:07)
Mr. Chairman, I will later be asking unanimous consent to submit to the record a little bit of historical information about the Houston Astros, but we will wait for now. Thank you.

Sen. Graham: (02:43:15)
I can’t wait.

Sen. Cruz: (02:43:16)
Will you include a photograph of the World Series trophy?

Sen. Sasse: (02:43:21)
I think there’s an asterisk hanging over the trophy.

Sen. Graham: (02:43:23)
Well, number one, I want to thank Judge Barrett for not interrupting us during your hearing. Senator Coons.

Sen. Coons: (02:43:33)
Thank you, Mr. Chairman. Thank you, Judge. Good to be talking with you again. These questions of fairness and who follows the rules and who are the umpires and do we win at all costs or do we respect the traditions of the game are essentially what’s before us. So let’s get to it with the 20 minutes we have. And thank you again to your family and everyone who’s traveled with you today.

Sen. Coons: (02:43:58)
Judge Barrett, in accepting President Trump’s nomination to the Supreme Court, you stated you share the judicial philosophy of Justice Scalia, your mentor, the justice for whom you clerk. His philosophy is of course, originalism. Essentially, the idea that the authoritative meaning of the Constitution is what it meant when ratified, whether that was 150 years ago, 240 years ago, but meant when ratified.

Sen. Coons: (02:44:23)
And I think the American people need to better understand what that originalist philosophy could really mean for their everyday lives. Because I think it means our entire modern understanding of certain constitutional commitments around liberty, privacy and equality under the law could in fact be rolled back to 19th or even 18th century understandings in a way unrecognizable to most Americans.

Sen. Coons: (02:44:48)
Many of these modern notions are rooted in a landmark case decided in 1965, Griswold versus Connecticut, where the Supreme Court held married couples have the right to use contraceptives in the privacy of their own home. In an interview just eight years ago, in 2012, on Fox News, Justice Scalia said this decision was wrong because under his originalist philosophy, there’s no such thing as a general right to privacy in the Constitution. This is a question most currently serving justices have answered. When we spoke on the phone last week, you said you couldn’t think of any specific issue of law where you disagreed with Justice Scalia. Do you agree with him that Griswold was wrongly decided and thus states should be able to make it illegal to use contraceptives if they so chose?

Well, Senator, as I’ve said a number of times, I can’t express a view yes or no, A plus or F. In my other capacity, I get to grade, but not in this particular capacity with respect to precedent. I think that Griswold is very, very, very, very, very, very unlikely to go anywhere. In order for Griswold to be overruled, you or a State Legislature would have to pass a law, prohibiting the use of birth control, which seems shockingly unlikely and then a lower court would have to buck Supreme Court precedent and say, “We’re not following Griswold.” Again, seems very unlikely. So I think that it’s an academic question that wouldn’t arise, but it’s something that I can’t opine on, particularly because it does lie at the base of substantive due process doctrine, which is something that continues to be litigated in courts today.

Sen. Coons: (02:46:39)
Well, just for the benefit of those watching, Judge Barrett, as I think you well know, your predecessors talked about Griswold in detail. Chief Justice Roberts said he agreed with the Griswold court’s conclusion. He shared your view that he’s comfortable commenting because it doesn’t appear to be an area that would ever come before the court. Justice Alito, Justice Kavanaugh said essentially the same thing that they’d agreed. In fact, Justice Kagan, who you’ve been citing on the no grading said, “I do.” That she’s willing to speak to it. “And as every nominee has, I do support the result in Griswold.”

Sen. Coons: (02:47:12)
I understand that you’re saying to us, you’re going to be your own justice. And that you’re very hesitant to talk about this case because it is an anchor to substantive due process. But let me just one more time say, are you unwilling to say as so many currently serving justices have, that at least Griswold is not wrong?

I think Griswold isn’t going anywhere unless you plan to pass a law prohibiting couples or all people from using birth control. And I think the question, because it’s entirely academic, because it seems unthinkable that any legislature would pass such a law, I think the only reason that it’s even worth asking that question is to lay a predicate for whether Roe is rightly decided because Griswold does lie at the foundation of that line of precedent. So because Griswold involves substantive due process, an area that remains one subject to litigation all over the country, I don’t think it’s an issue, a case, that I can opine on, but nor do I think Griswold is in danger of going anywhere.

Sen. Coons: (02:48:17)
Well, and to be clear about what it underlies, it’s not just that Griswold was a landmark case, as you well know, it anchors a lot of modern liberty interests in personal and family autonomy. It was extended to unmarried couples in Eisenstadt. It was extended to the right for women to control the reproductive choices in Roe and in Casey, but it was also extended to support same-sex couple intimacy in Lawrence v. Texas. And ultimately, that same-sex couples have an equal right to marry in Obergefell.

Sen. Coons: (02:48:47)
The reason I’m taking a few minutes with this, is that Justice Scalia publicly disagreed with or dissented in each and every one of these cases. He wrote in one of these decisions that it reflected the court adopting the so-called homosexual agenda. And just last week, Justices Thomas and Alito issued an opinion stating the Supreme Court needs to fix problems from its holding in Obergefell.

Sen. Coons: (02:49:11)
So I understand, you’ll be your own justice and Justice Scalia’s philosophy is significant, but I also think you’ve made it clear that it’s largely your philosophy. And I’m trying to help viewers understand what it means to replace a Justice Ginsburg with someone who may more closely follow Justice Scalia’s approach.

Sen. Coons: (02:49:32)
If Justice Scalia had had his way, we’d be in a very different country with regards to gender discrimination. In one of Justice Ginsburg’s most celebrated decisions in 1996, in the case involving Virginia Military Institute, she struck down their male only admissions policy. Decades later, VMI honored Justice Ginsburg in recognition of the contributions its female alumni have made. Justice Scalia was the sole dissenter in that case, and even accused the court of destroying VMI, which remains standing and strong to this day. Now I’m just getting at how closely you would ally yourself with Justice Scalia’s jurisprudence. Would you agree with Justice Scalia that Justice Ginsburg’s decision in VMI was wrong?

Well, Senator Coons, to be clear, as I said, I think in response to this question yesterday, I do share Justice Scalia’s approach to text, originalism and textualism, but in the litany of cases that you’ve just identified, the particular votes that he cast are different questions of whether I would agree with the way that he applied those principles in particular cases. And I’ve already said, and I hope that you aren’t suggesting that I don’t have my own mind or that I couldn’t think independently or that I would just decide like, “Let me see what Justice Scalia has said about this in the past.” Because I assure you, I have my own mind. But everything that he said is not necessarily what I would agree with or what I would do if I were Justice Barrett. That was Justice Scalia. So I share his philosophy, but I’ve never said that I would always reach the same outcome as he did.

Sen. Coons: (02:51:13)
Understood. But I think a case like this is a striking example of what it might mean to replace Justice Ginsburg and her methodology and her approach with someone much closer to Justice Scalia. And frankly, to me, this comes back in part to the president who nominated you. President Trump did not nominate you to carry on Justice Ginsburg’s legacy. He nominated you because he wants to undermine or change or shift that legacy. And he’s been very clear repeatedly before you were chosen about his intent to nominate justices in the mold of Justice Scalia.

Sen. Coons: (02:51:46)
You recognized yesterday in an exchange with Senator Leahy that replacing Justice Scalia with Justice Garland, had Judge Garland become Justice Garland, would have changed the balance of the court. It’s something you wrote about in 2013 in the Texas Law Review. You recognized these balance shifts are why Supreme Court nominations are so much at issue in presidential elections. Do you just acknowledge that your confirmation, even though you won’t be identical to Justice Scalia will profoundly impact the balance of the court and the way in which it decides future cases?

I think the statement that I was having an interchange with Senator Leahy about yesterday was about an interview that I gave shortly after Justice Scalia’s death, but after Judge Garland’s nomination. And I did say that… Used that phrase, lateral move. And what I meant by that, I very much agree with Senator Sasse that we shouldn’t talk about Republican judges and Democratic judges, because I think there are just judges, but of course it’s true that judges have differences in judicial philosophy.

So I actually think Justice Briar and Justice Scalia are a great example of this because they sometimes have public debates with Justice Scalia, advocating originalism and Justice Briar, advocating active liberty. And there’s room on the court for that, for having different approaches. It’s not about having… Your colleagues on the other side of the aisle, all of you in the room have different policy platforms, but judges don’t have policy platforms, but it is certainly the case that judges take different approaches to interpreting the text. And that is what I meant when I was describing how the balance of the court would shift. It would be away from one balance and toward another, in terms of how judges think about the texts.

And Judge, what I want to explore with you in the time I have remaining, is exactly how those shifts in methodology, in approach, may well have a dramatic impact on the policy outcomes, on what is and isn’t upheld as law going forward. On the board behind me, I’ve asked my team if we would just go back and look at cases. All of these cases listed, it’s roughly 120, have something in common. Justice Ginsburg was in the majority. Justice Scalia was in the minority dissenting. And these are cases that touch on nearly every aspect of modern American life.

I’ve talked a lot yesterday about healthcare and the Affordable Care Act. Yes, that’s on there. A number of my colleagues have talked about some other areas, but what’s striking is if you just look at what a five-four balance towards this methodology means, if changed towards a five-four balance to this methodology, it has huge consequences for education, for consumer rights, for access to the courts, for civil rights, for immigration, for environmental protection, for Native American rights, for workers rights, for elections, for executive power, for reproductive rights, for free speech, civil justice, economic development, privacy, government misconduct, prisoner rights, capital punishment, gun safety, and criminal justice.

In each and every one of these cases, if Justice Ginsburg had been replaced by a justice with the same core-

Sen. Coons: (02:55:03)
If Justice Ginsburg had been replaced by a justice with the same core methodological approach and view of the law and decision-making, you can’t predict exactly how the case would have turned out, but in virtually every case, it would have moved in a different direction and in a direction much closer to Scalia’s philosophy and farther away from Justice Ginsburg. And that’s why I think your views on precedent matter and we should take a few minutes and go through them. It’s something you’ve written about at length and where you’re quite well-grounded. The precedence of the court, which is what these 120 cases are, are precedents upon which litigants, the average American, should be able to rely, and that’s that whole issue about whether justice is simply umpires calling balls and strikes or whether there is some agenda.

Sen. Coons: (02:55:50)
My concern is that a leading scholar in the field of constitutional law has recently reviewed your writings and concluded that you demonstrate an extreme willingness and even radical willingness to revisit settled precedence. Some characterize you as more extreme than Justice Scalia in your approach to precedent and closer to Justice Thomas. The Supreme Court has long held, as you well know, that overturning precedent, a settled case requires a special justification or strong grounds. But in a 2003 article in the University of Colorado Law Review, you wrote, and I’m quoting, and I think I’ll get a chart here in a second that has this quote, “Generally speaking, if a litigant demonstrates a prior decision clearly misinterprets the statutory or constitutional provision it purports to interpret the court should overrule the precedent.”

Sen. Coons: (02:56:41)
What I see missing from this text and the broader context around it was anything about needing a special justification to overturn settled law or anything about the other factors the Supreme Court typically requires. You seem to be saying a judge should overrule any precedent as long as she thinks it’s clearly wrong. If that’s your view, and I think from this text it is, it basically means any precedent is at risk where your originalist view of the Constitution or textualist view of the statute says it’s clearly wrong. Do you stand by this statement?

Senator Coons, that statement was talking about the Courts of Appeal. I believe that statement was about the due process clause, and as you probably stretch back from your lawyer days remember, the principles of issue preclusion and claim preclusion. And that article was about how in the Courts of Appeals it had a very rigid rule that one panel couldn’t overrule another, that those rigid rules in the Courts of appeal were inconsistent or in tension with some of the courts issue and claim preclusion doctrine. So it wasn’t about normal functioning of precedent, especially at the Supreme Court where there are no such rules. And I’ll point out that the article was about Circuit Courts and Courts of Appeal, and in my time on the Seventh Circuit I don’t think there’s any evidence that I’ve been unwilling to follow or apply circuit precedent.

As for the scholar criticizing me as a radical on stare decisis, I’m not sure who it was or the substance of the criticism, but I’m very surprised, because I think it was my conversation with Senator Feinstein earlier I explained that the article which many people have plucked a sentence from, the Texas Law Review article, was a defense of the Supreme Court’s approach to constitutional stare decisis.

Sen. Coons: (02:58:42)
Well, if we can, let’s move to that quote, because your words weren’t just limited to this context to talking about individual litigants versus how issue preclusion works. It was a novel analysis, the 2003 article, something I hadn’t thought of about how stare decisis impacts an individual litigant. But in this 2013 University of Texas Law Review article, which has also been referenced today, you wrote, and I’m quoting, “It’s more legitimate for a justice to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.” Again, you’re saying that if a Supreme Court Justice thinks a prior ruling was clearly wrong she should disregard precedent with which she disagrees, regardless of the typical balancing factors.

Senator Coons, with respect, as I explained this morning, that sentence has been plucked out of the article to, I think, create this impression about the context. The whole article discussed reliance interests, discussed the reasons for stare decisis, and emphasized that courts ought not disrupt settled precedent absent very good reason to do so. Reliance interests being one. And I think that no one on the court or even no one in this room would think that the court never revisit its precedent. As I was mentioning, maybe it was to Senator Leahy earlier, Bowers versus Hardwick held that certain sexual conduct between same-sex partners was illegal. It was criminalized. And then Lawrence versus Texas overruled that, and my guess is that you think Lawrence versus Texas was correctly decided. So I don’t think, Senator Coons, that your position would be that no precedent should ever be revisited.

Sen. Coons: (03:00:22)
Correct. I do think in grievously wrong cases it is appropriate to reach back, as a number of members have discussed around Brown vs Board and Plessy, and I did note that exchange earlier. But in terms of reliance interest in the significance of reliance interest, in reading that 2003 Colorado Law Review article, you wrote that, “Reliance should count much less, if at all, when a litigant convinces a court that precedent conflicts with the statutory or constitutional provision it purports to interpret.” I was struck by that language because I know you choose your words carefully. You’ve acknowledged reliance interests exist, and they’re part of the Supreme Court in its approach, but in this article, it seems to me you’re giving your own views about whether reliance should matter and you’re unequivocally stating it shouldn’t. It should matter less if at all, when the originalist approach to reading the Constitution says, “This is wrongly decided.” That’s why, to me, the concern about reading the Constitution through a Scalia lens, rather than a quite different methodologically Ginsburg lens.

Sen. Coons: (03:01:34)
You’ve also recognized originalists like yourself are more likely to overturn precedent. In the Texas Law Review article, you cited statistics that self-identified originalists like Scalia and Thomas urged and joined in overruling precedent more than any other justices over an 11 year period. The disturbing picture to me overall about all of this about precedent is that I think there’s been a movement amongst originalists and a change in terms of the approach of judges to judging who self-identifies originalists. In the 2017 article in the University of Minnesota in Constitutional Commentary that’s been referenced before you said, and I’m quoting about modern originalists that, “They’ve abandoned the claim one should be an originalist because originalism produces more restrained judges.” Do you stand by that characterization?

Well, Senator Coons, I just want to point out that in this whole discussion, I did write that Colorado article in 2003. I don’t recall that sentence or its context, but in my full body of work, including everything that’s come before, including the 2013 Texas Law Review article, I’ve written at great length about the virtues of stare decisis and the stability interest it serves, and in my scholarship, I’ve also talked about other features of the judicial system. And also, I’d like to point out that nothing in my record in the Seventh Circuit shows disrespect for stare decisis. And also, Justice Scalia did observe and follow precedent. It’s not like Justice Scalia ever advocated an overthrow of stare decisis. So I just don’t think there’s any evidence to suggest that I’m in there trying to burn up the 600 volumes of the United States Reports that are on the shelf. I don’t have an agenda in that regard.

Sen. Coons: (03:03:20)
Well, that’s exactly what caused me concern as I looked at Thomas versus Scalia and which may be more the role model you follow in terms of the application of stare decisis. These quotes jumped off the page. I haven’t made a practice of reading 50 page law reviews recently.

I don’t recommend it.

Sen. Coons: (03:03:40)
They were compelling and well-written. But these quotes struck me as clear statements of a view or an intent. And as I’ve said before, the larger challenge here is not what you’ve said about views on cases, but what the President who has nominated you has said about his goals and his objectives for your service on the court. And frankly, my concern about originalism and an activist willingness to reconsider precedent is that in combination Justice Scalia’s views often expressed in sharply worded, memorable, memorable descents may make for great academic reading, but I think most Americans don’t expect them to become the law of the land. And in a long line of cases, they would overturn well settled precedent that I think we have all come to expect. So my core concern here, your honor, is that your confirmation may launch a new chapter of conservative judicial activism unlike anything we’ve seen in decades.

Sen. Coons: (03:04:46)
And the point of the chart was to just show we’ve mostly been talking about the Affordable Care Act and privacy related cases, but if that’s true, it could touch virtually every aspect of modern American life. I pray that I’m wrong. I hope that I am. But in my reading of your work, nothing has alleviated my grave concerns that rather than building on Justice Ginsburg’s legacy of advancing privacy and equality and justice, I’m concerned, in fact, you will take the court in a very different direction. And so with all due respect, I will be voting against her confirmation, your honor. Thank you, M.

Lindsey Graham: (03:05:22)
Mr. Chairman. One brief comment, the six super precedent cases. How many were there? Five, six?

Oh, let’s see. This is going to be just like when Senator Sasse asked me [crosstalk 03:05:33].

We know where they’re at.

There was Marbury. There’s Brown there’s. Mapp versus Ohio. There’s the civil rights cases.

So just very briefly for the public, and the reason those cases were picked by you, nobody is suggesting in today’s world that it’s not the Supreme Court’s decision to interpret the Constitution. Marbury versus Madison.

That’s correct. And to be clear, that list was formulated by other scholars.

Right.

I was referring to it.

Not just your list.

Nobody thinks that Marbury versus Madison and the court’s authority to interpret the Constitution [crosstalk 03:06:11].

And nobody in America is wanting to go back to segregation.

No.

No legislative body is attempting to do that for a good reason. America does not want that. Nobody in their right mind wants that. The rest of these cases that have been listed as super precedent had that commonality, overwhelming acceptance, is that correct?

Yes, that is correct.

As to Roe and Casey and to Heller and to United Citizens, active litigation going on right now today, is that correct?

That is correct.

Senator Hawley.

Senator Hawley: (03:06:46)
Thank you, Mr. Chairman. Judge Barrett, good to see you again. Are you aware of any active litigation challenging the constitutionality of Griswold versus Connecticut?

I am not.

Are you aware of any litigation in recent decades challenging the constitutionality of Griswold versus Connecticut?

I am not.

Are you aware of any legal movement out there to challenge the constitutionality of Griswold versus Connecticut?

I am not. Although, Senator Hawley, as I said to Senator Coons, I’m certainly not aware of anybody trying to make the argument that a legislature should prohibit the use of birth control. But, as you know, Griswold does lie at the base of the doctrine that very much is challenged in federal court.

Here’s my point. I was seven years old when Judge Robert Bork came before this body, I don’t remember any of that, I wasn’t watching it as a seven year old, but what we saw, I think the legacy of the Bork Hearings continue to reverberate. His name has become a verb. The borking of nominees. I think what we’ve seen today is an attempted barking of Judge Amy Barrett. The problem is, they don’t have anything in your record that they could use to so badly misconstrue to suggest that you’re somehow going to fundamentally change America, that now they have to attribute to you the worst readings and most Draconian misinterpretations of Justice Scalia. So we take Scalia’s record, we distort that, and then we attribute it to you.

So let me just come back to your relationship with Justice Scalia. I was under the impression that you were a different person than Justice Scalia and that you had, in your own words, “Your own mind.” Is that fair to say?

That it’s fair to say.

Is it fair to say that you are an independent woman and an independent jurist and an independent professional and also, by the way, a pretty darn good lawyer and you’ll make up your own mind on the decisions, cases, controversies that come before you to the Supreme Court of the United States, is that fair to say?

Yes.

I think maybe then we can put to rest this attempt to constantly leverage the worst interpretations of Justice Scalia’s philosophy, misrepresentations, and attribute them all to you as if you are the same person. Frankly, I think it is demeaning and insulting and I’m glad that you pointed that out in response about your independence to the last question. Let me ask you about another set of questions, just briefly, you had this morning, Senator Leahy asked you about the Foreign Emoluments Clause, which is in Article One, Section Nine, Paragraph Eight. He asked you whether it was best characterized as an anti-corruption clause. You might remember that in terms of foreign influence and foreign interference. And then he referenced the President and various allegations about foreign influence.

Since he asked you about it, and since he asked about foreign influence in government, I think it’s only fair that I ask whether hypothetically speaking, just hypothetically, if there were, let’s say, a Vice President to the United States who hypothetically had an adult son who hypothetically worked for a foreign oligarch who then sold access to his father, the Vice President, and his father then intervened in a case to make sure that that oligarch wasn’t prosecuted, hypothetically, would that violate, would that constitute the kind of foreign corruption that the constitution is concerned about?

I can’t answer hypotheticals.

Well, I thought you might say that, and I’m glad you’re don’t and won’t because, who knows, that case may come before you, but I think it’s a fair set of questions to ask. Let me ask you about something different, Section 230 of the Communications Decency Act passed by Congress in 1996. Yesterday Justice Thomas issued a descent from a denial of [inaudible 03:10:16] in a case called the Malwarebytes case. Now, I bet you haven’t had a chance to see his …

I was just about to say, please, don’t ask me about it, Senator Hawley, because I didn’t have a chance to read anything on it.

Well, let me read to you just a few parts of it. It’s quite significant I think. Here’s from the opening paragraph. “When Congress enacted the statute,” meaning Section 230 of the Communications Decency Act, “most of today’s major internet platforms did not exist, and in the 24 years since we have never interpreted this provision.” We meaning the Supreme Court. “But many courts have construed the law broadly to confer sweeping immunity on some of the largest companies in the world.” He’s talking about the big tech companies, and he quite methodically over 10 pages goes on to set out the ways in which courts at the behest of these tech companies have dramatically rewritten Section 230, changing its liability standards. He talks about changing the distinction between publisher and distributor liability, changing the immunity shield, changing the narrow liability shield, extending 230 to protect companies from a broad array of traditional product defect claims.

It’s quite a thorough statement. Here’s my question to you. You haven’t read this. I don’t think you’ve had a Section 230 case.

I haven’t.

So, in general, not about his dissent from denial, but in general, what are the dangers of the Supreme Court or any court rewriting a statute departing from the text that Congress or a legislature, a lawmaking body, departing from the text they have written, that has been adopted, presented and adopted? What are the dangers in that if a court departs from that and substitutes its own judgment, whether it’s done in one opinion or over a series of years?

So, as you’ve posed the question without respect to Section 230, just in general, the danger of a court doing that is to subvert the will of the people. You represent the people, as has been pointed out over the course of the hearing, judges are not elected and they have life tenure and can’t be voted out of office. So if judges miscontrue statutes or bend them to the judge’s idea of what would be good public policy then it deprives the people of the chance to express the policies that they want through the democratic process.

And the effect can be cumulative, can’t it? I mean, you can start with a change to the statute, a rewrite of one provision of the statute that then becomes precedent, and then when the court revisits this case later, revisits the issue later, then they expand that and do a little more rewriting, and pretty soon five or 10 or 15 years later, you’re with something that has been so heavily blue penciled, so to speak, that it doesn’t bear much resemblance at all to the original statute. I mean, that’s a danger of courts continuously substituting their own judgment. Is that fair to say?

That can happen.

So let me just say my opinion not yours, I think it’s pretty clear that has happened with Section 230. I think Justice Thomas does an outstanding job here of laying out why that’s the case. Let me ask you in a related vein, Justice Holmes, Oliver, Wendell Holmes Jr. said in the famous Lochner case in his famous dissent in that case of over a century ago. He said, “The 14th Amendment does not enact Mr. Herbert Spencer’s social statics.” Do you agree with that statement? What do you think he was getting at with that?

So Justice Holmes’ famous dissent in Lochner, which was later the position adopted by the court, is that courts shouldn’t pour their ideas of good economic policy into the 14th Amendment to stand in the way of policies that the legislatures enact. For example, on questions of maximum hours for bakery workers or minimum wages and those kinds of things.

You mentioned economic policy. Talk just a little bit about how a court could substitute its own views on economic policy for those of a law enacting body of a legislature or of Congress.

Sure. Well, in that era, in the Lochner era, and then we saw it also in the cases that preceded the switch in time, the court was standing in the way, I guess, in Lochner itself, in the way of reforms for workers that legislatures were enacting. And so if, say, one had a preference for free trade, or if one had a preference for having no minimum wage or having a minimum wage, to hold such a statute that did the opposite of your policy preference unconstitutional because it didn’t comport with your idea of the best economic policy would be to thwart the will of the people without warrant in the Constitution.

Let me preface this by saying, most judges are not economists, I suppose. Some may be, but most judges are not economics experts. Are there dangers, in general, with courts acting as economic policymakers, deciding economic policy, making economic judgements? I mean, is that something that courts should be wary of is outside their area of expertise?

Well, I’m certainly not an economist. I think courts are expert in interpreting law. We’ve been trained in law schools, and that’s what we’re good at and that’s what we should stick with.

I raise these concerns and I raise them in conjunction with Section 230, because it seems to me that in the closely antitrust context we have seen over a period of many years courts substitute their economic judgment in many cases for what the words of statutes actually say and what perhaps the fairest interpretation of statutes might actually be. And whether it’s Section 230 or the antitrust laws, one effect of this is to see growing concentrations of power in this country economically that I think are very significant threats to the ongoing operation of our democracy, to the basic ability of the people to control the levers, both of the economy and of culture and of government. And I’m afraid I think that courts have some role in this in much the way that Justice Thomas suggested in his dissent from denial yesterday, and I think it’s hard to ignore it in the antitrust context as well.

So I won’t ask for your view on this because these are cases, these are issues, that you very may well be called upon to weigh in on. I hope that you are. But I hope that you will give these issues consideration and the, I think, very well taken warning of Justice Holmes in Lochner. I think perhaps that insight has been lost sight of in many cases by both Republican appointees and Democratic appointees over many years on the Supreme Court in a variety of areas. Let me transition to one other area of law. That’s very important, back to the First Amendment and to the free exercise of religion. You had an interesting free exercise case recently. You were on the panel, you didn’t write the decision. This is the Pritzker case. Illinois Republican Party versus Pritzker decided on September 3rd of this year. So it’s quite recent. It was just last month.

This is a case in which the Governor of the state was sued because, in the words now of the opinion I’m quoting, his executive order relating to COVID lockdowns “exhibits special solicitude for the free exercise of religion.” And the case in a roundabout way, challenged that special solicitude for churches and religious organizations. You joined the opinion in full. You didn’t dissent. Can you say why you joined the opinion and why you think that the content here is right, why the holding is correct?

Sure. So in that case, the Illinois Republican Party said that because the executive order in Illinois had given an exception for the free exercise of religion, for example, so that people could gather at churches or synagogues and mosques, that, that same special protection had to extend to the Illinois Republican Party and indeed by logical extension to everyone so that the whole order would fall because religion couldn’t be singled out for special treatment and that, that right to free speech, free assembly, et cetera, that it was under First Amendment doctrine a content-based distinction that could not survive. And what that opinion said about that is that it was permissible for the Governor of Illinois to carve out an exception for free exercise and that doing so didn’t compel the government to extend the same protection to everyone. As Judge Wood said very well in that opinion, trying to accommodate a right explicitly mentioned in the Constitution and the First Amendment did not put the COVID order in jeopardy.

And the opinion is very firm on this point. You quote from the Hosanna-Tabor case, which you and I discussed a little bit yesterday, unanimous case from the Supreme Court. This is the opinion quoting from that case. “The First Amendment itself gives special solicitude to the rights of religious organizations.” That’s the Hosanna-Tabor case. This opinion that you joined goes on to say, “There can be no doubt that the First Amendment singles out the free exercise of religion for special treatment. Rather than being a mechanism for expressing views as the speech, press, assembly and petition guarantees are, the free exercise clause is content-based,” as you just said. “The mixture of speech and music and ritual and readings and dress that contribute to the exercise of religions the world over is greater than the sum of its parts.”

In other words, what I understand, correct me if I’m wrong, what I understand the panel to be saying is, the free exercise of religion isn’t reducible to the free exercise of speech. It isn’t reducible to the free exercise of assembly. Those are important rights. Those are also protected by the First Amendment. But the free exercise of religion protects something different and more. It protects the rights of religious people and religious organizations of all backgrounds the world over. But, of course, in this country, for Americans, it protects them and gives them special solicitude under the First Amendment. Have I got that correct?

Yes. To be clear, I can’t take credit for the eloquent language. That was Judge Wood’s language on the panel opinion that I did join. Yes, but the point that the panel opinion makes is that the free exercise of religion is singled out for its own protection in the First Amendment rather than being a subset of speech. And the position that the Illinois Republican Party took in that case would have been more putting everything under the speech umbrella.

And why do you think that is an important point of constitutional law? I’m not asking you to comment on cases, but if you could put on your constitutional scholar hat, why is it significant that the First Amendment gives special solicitude, as this decision says, as the Supreme Court has repeatedly said, special solicitude to the rights of religious associations, religious believers, religious worship and exercise?

I think that case itself, the Illinois Republican case, shows why this distinction can matter, because as our panel held in that case, the outcome may have been different if we had been treating it solely as a free speech question, because the court has said that content-based distinctions, under the First Amendment get strict scrutiny and it can be hard to satisfy. So the case might’ve come up differently had it only been speech at issue. The case came out as it did because free exercise was also at issue.

I think in this time when we see many challenges to the rights of religious organizations, their ability to meet freely and where, frankly, we see many instances around the country where religious organizations are treated, religious churches, synagogues, mosques are treated less favorably than secular counterparts, whether that’s casinos or gyms or liquor stores, you name it. But so many different executives around this country have chosen to single out churches for disfavor, whether it’s in the COVID context, which is what this case is about, or another context. I think that the holding of this opinion is very, very significant and the Supreme Court’s doctrine on this line of cases about the rights and the special solicitude, in the court’s words, for religious organizations is very, very significant.

I’ll just conclude by saying, Judge Barrett, that it’s been a privilege to get to speak with you these last couple of days. Congratulations to your family and to Jesse, and I think your answers to these questions have been really, really exceptional. I have been extremely impressed, and I was impressed to begin with. And I just want to put a finer point on something that Senator Sasse said earlier. He said you exercised your rights of assembly and free exercise and free speech when you were a faculty member, we’ve talked about that at length in various positions you took, and he pointed out there’s nothing wrong with that. You shouldn’t be penalized for it. I just want to agree with the Chairman that I think there’s nothing wrong with confirming to the Supreme Court of the United States a devout Catholic, pro-life Christian, and it will be my privilege to vote for you.

Thank you.

Thank you, Judge Barrett. Thank you, Mr. Chairman,

Senator Blumenthal.

Senator Blumenthal: (03:23:48)
Thanks, Mr. Chairman. Welcome back, Judge Barrett, and to your family as well. I hope you got some rest last night. I think that’s true of all of us.

So I did have a glass of wine. I’ll tell you that I needed that at the end of the day.

Well, let me just say, on that kind of point, you have a right to remain silent. First, Mr. Chairman, I’d like to enter into the record some letters from the National Council of Jewish Women and 86 Jewish organizations, from gun violence prevention organizations and from the Pro-Choice Caucus.

Without objection.

Thank you. There are a couple of loose ends that I’d like to clarify from our conversation of yesterday. First of all, in our discussion of the Second Amendment, we both made reference to the Third Circuit and its ruling on whether or not individuals convicted of a crime could possess a firearm. And I think you cited the Third Circuit as supporting the idea that certain felons could possess firearms, if I’m not mistaken.

And I went back and checked that too. And so you’re right. It was a splinter decision. And I was thinking of Judge Hardamin’s opinion, which was close [inaudible 03:25:24]. Is it on now?

Speaker 5: (03:25:12)
[inaudible 03:25:38].

Okay.

I hope my time is restored. [inaudible 03:26:18].

Speaker 5: (03:25:12)
None of the mics are working. [inaudible 03:26:31].

We’ll take a 10 minute recess. Well, we have 20 minute rounds, and hopefully we can be done in time before dinner tonight. The we’ll plow ahead and have a few breaks along the way. So a couple observations from yesterday. There is an opportunity here to explore the nominee’s thinking to the extent she can share her thoughts without deciding a particular case that comes before her. Senator Harris, who I respect, suggested you were not candid. Judge Barrett, I couldn’t disagree more. I think I’ve been here for a few of these. I’ve voted for every nominee that has come before the Committee. I think you have one thing in common, all of you, you’re highly qualified, capable people. I saw that in Justice Sotomayer and Justice Kagan submitted by President Obama. I definitely did not share their legal philosophy. I expected them to be fairly solid votes for the liberal side of the Court. And generally speaking, they have been, but they’ve done so honorably.

I think they have kept their commitment to be fair and impartial, but we do understand judicial philosophy matters. There’s differences. I think everybody in America can get three hours of credit for originalism. It’s the most detailed explanation of a legal philosophy I think any nominee is provided to the Senate, and I appreciate that. Senator Harris mentioned about how much more candid Justice Ginsburg was, and with all due respect to Senator Harris, I don’t agree with that. I think Justice Ginsburg established the Ginsburg rule for a reason, but what she cited in terms of evidence of candor was a very articulate statement by Justice Ginsburg as to why she embraced the pro-choice point of view. That’s not being candid about the law, that’s being candid about who you are. I think it’s pretty clear to everybody who’s been watching these hearings that you and your family are pro-life, that you are a practicing Catholic, and you adhere to the tenants of your faith. But I hope people also understand that you have made a pledge to the Committee and to the country at large that you will set aside whatever religious views you have when it comes time to decide the law. There’s already been an example in the Seventh Circuit where you upheld a legislative provision that restricted access to abortion clinics in terms of protesting. I think it’s the “bubble case.” So I’m highly confident that you will judge every American …

Confident that you will judge every American based on their case, not the law of Amy. Here’s what is important to me, Senator Blackburn and Ernst are two conservative women on this committee. It is a very give and take society called America, but there’s one group in America I think has had a hard time of it, ness, conservatives of color and women conservatives. There’s an effort by some in the liberal world to marginalize the contribution because you come out on a different side of an issue, particularly abortion.

So this hearing to me is an opportunity to not punch through a glass ceiling, but a reinforced concrete barrier around conservative women. You’re going to shatter that barrier. I have never been more proud of a nominee than I am of you. You’ve been candid to this body about who you are, what you believe. You’ve been reinsuring in your disposition and this is history being made, folks. This is the first time in American history that we’ve nominated a woman who’s unashamedly pro-life and embraces her faith without apology and she’s going to the court, a seat at the table is waiting on you and it will be a great signal to all young women who want to share your view of the world that there’s a seat at the table for them.

This won’t be celebrated in most places. It’d be hard to find much commentary about this moment in American history, but in many of our world, this will be celebrated. This has been a long time coming and we have arrived. So I want to thank President Trump for giving you the opportunity to showcase your talents. I believe that Justice Sotomayor and Kagan were credibly qualified women of great character, disposition and integrity, and I believe the same about you.

So let’s talk a little bit about yesterday, Obamacare. This hearing has been more about Obamacare than it has you. Obamacare is on the ballot. If you want socialized single payer health care, that’s on the ballot. Why do many of us object to Obamacare? It was written and passed on a partisan line I think on Christmas Eve. Most big changes in society have more buy-in than that. You’re talking about one-fifth of the American economy, and as I said yesterday, from a South Carolina point of view, this has not worked out well. We started with five exchanges. We’re down to one, you have one choice, four rural hospitals have closed, premiums have gone up, not down by an average of 30%.

When you look at the formula used by Obamacare, I can understand why Senator Harris likes it the way it is. I can understand why Chuck Schumer likes it the way it is. Three states get 35% of all of Obamacare dollars, New York, California and Massachusetts. They’re 22% of the population. In South Carolina, if you had a per patient formula, no matter where you lived, you got the same contribution from the federal government, South Carolina would receive almost an additional billion dollars. I don’t blame California and New York and Massachusetts for wanting more. People in South Carolina should blame me and Senator Scott for accepting that construct.

So when it comes to healthcare, we all have our different positions, but today is about you and today is about whether or not you’re qualified to serve on the highest court in the land. Severability, can you tell me again, I know you’ve been asked a hundred times the doctrinee severability. What does it mean? Push the red button.

Okay.

I think so. No, I can’t hear you now.

It’s not-

There we go. There we go.

Okay.

There we go.

So the doctrine of severability is a doctrine essentially of statutory interpretation, and what it means is if you have a statute and the Affordable Care Act is obviously a very long statute, if there’s one provision within the statute that’s unconstitutional, the question is whether that one section can simply be rendered null and excised from the statute, severed, so that the rest of the law stands, or whether that provision is so central to the statute that its unconstitutionality, like once it’s pulled, out the whole house of cards collapses, and the presumption is always in favor of severability. It’s a question of your intent. The court… I’m sorry. Go ahead.

The main thing is the doctrine of severability has a presumption to save the statute, if possible. Is that correct?

That is correct.

So I want every conservative in the nation to listen to what she just said. The doctrine of severability presumes and its goal is to preserve the statute if that is possible. So from a conservative point of view, generally speaking, we want legislative bodies to make laws, not judges. Is that correct?

That is correct.

Would it be further true that if you can preserve our statute, you try to to the extent possible?

That is true.

Okay. That’s the law, folks. Abortion. You were read some statements by, I think it’s Saint… What’s the name of the pro-life group, county?

The St. Joseph County Right to Life.

Okay. You were asked by Senator Blumenthal, who I respect, whether or not their policy positions were illegal. Do you remember that?

I remember him asking me whether I accepted other policy positions on in vitro fertilization and whether it was in a rejection of Roe.

Yeah. Well, I remember a exchange where they took a statement from that group or some other group arguing for their criminalization.

Mm-hmm ( positive), okay.

Remember that, the criminalization of IBF, is that right?

Yeah, I think so.

Okay. Here’s my problem with that analysis. That was a position taken by a pro-life county organization. It’s not your job to pass judgment on the thoughts and beliefs of Americans, is it, as a Supreme Court justice?

No, it is not.

So when they argue that something should be criminal, they have a right to make that argument, right?

They do. It also wasn’t in the ad that appeared next to the statement I-

The thing is how does something become criminal in our legal system in America?

When a legislative body passes a statute.

So here’s what I want you to know. Statements by political organizations are not law, and what we’ve tried to do yesterday was turn a pro-life group into a legislative body and tried to get you to rule on their beliefs. I think that is a dangerous thing for Americans to be asking a judge to do, whether you’re on the right or the left. Here’s a statement from an organization I don’t particularly agree with and I want you to pass judgment as to whether or not that’s legal. The question for you would be, if some legislative body tried to criminalize this procedure, then that would be subject to litigation of the court. Is that correct?

That is correct.

A case in controversy doesn’t arise because you disagree with a statement of a private person or a private group. Is that correct?

That is correct.

A case in controversy arises around criminal law when somebody passes a criminal statute. Is that correct?

That’s correct.

Then and only then would you determine the constitutionality of that provision. Is that correct?

Well, actually not even then. The statute would have to be enforced against somebody. So a prosecutor would have to try to hold someone criminally liable for getting IVF, for example.

So the case in controversy concept would have to mature.

Yes, there would be quite a lot of maturation required.

Yeah, before it got to Supreme Court, if it ever did. So I just want every American to know, it’s not the role of Supreme Court justice to pass judgment on your opinions. It’s the role of a Supreme Court justice in very limited circumstances to pass judgment on laws passed by legislative bodies, and in other circumstances, regulation, I would suppose. Now voting, is it appropriate for legislative bodies to protect the integrity of the ballot box?

So any specific measures that legislative bodies took to protect the integrity of the ballot box could be subject to litigation, subject to challenge, so.

That’s right. As they are developed, the courts will hear cases if cases and controversies arise, right?

Yes.

One of the reasons we don’t have an agreement with the House is in their $2.2 trillion package, they’re mandating ballot harvesting as a national policy. I think it’s ripe for fraud. We’ve seen evidence of ballots being placed in people’s cars and dropped in ditches. So I think there will be an effort, I hope, to protect the integrity of the ballot and also ensure easy voting. I don’t think there are contrary goals for the nation. Now, when it comes to being on the court itself and collaborating with other members of the court, what’s your experience been at the Seventh Circuit level? How’s that played out?

It is so collegial. We all collaborate. I have the greatest respect and have had wonderful interactions with every single one of my colleagues.

Do you think you have the capability to fit in at the Supreme Court?

I hope so.

Okay. So we talked a lot about laws legalizing same sex marriage. What’s the name of the case?

Obergefell.

Okay. If anybody tried to change that precedent, one of the things you would look at is a reliance interest that people have formed around that piece of legislation.

Yes.

Same with Casey and Roe.

Yes.

Okay. So reaching a decision that the case was wrongly cited doesn’t end the debate in terms of whether or not it should be repealed. Is that correct?

That is correct.

There is a very rigorous process in place to overturn precedent?

There is. Many factors, reliance being one.

Okay. Is there any constitutional right to a polygamous relationship?

Let’s see. That might be a question that could be litigated. Polygamy, obviously, in many places is illegal now. But that could be an issue somebody might litigate before the court at some point.

Yeah. Somebody made the argument it’s possible for three people to love each other genuinely and that would work its way to the court if somebody wanted to make that argument. Is that correct?

Somebody could, yeah, make that argument.

So you’ve been asked a lot about Roe v. Wade and Casey, and one of the differences between Brown vs. Board of Education and roll a line of cases is there’s active litigation regarding Roe. Is that correct?

That is correct.

I think Senator Hirono named eight or nine different cases that may come up to the court, cases and controversy, and one of the reasons you can’t tell us how you would rule is because there’s active litigation coming to the court. Is that correct?

That is correct.

One of the reasons you can say with confidence that do you think Brown vs Board of Education is super precedent is that you’re not aware of any effort to go back to the good old days of segregation by a legislative body. Is that correct?

That is correct. I’ve also said that in lectures that Brown was correct as an original matter so that is the kind of things, since I’ve said it in writing, I felt like I could express before the committee.

When it comes to Heller, there’s a legislative bodies all over the country passing laws regarding gun ownership. Are you aware of that?

I am aware of that.

Okay. When it comes to Citizens United, I think there’ll be some efforts after this election to maybe revisit that case. So the thing that I’m trying to establish here is that Heller, Citizens United, Roe, Casey, are all actively being litigated because legislative bodies are playing in that arena. Is that a fair statement?

That’s a fair statement.

So your point to us is when it’s likely that case and controversies around the holding of a particular case are going to come to the court, there’s only so much you can tell us about what you may or may not do.

Absolutely.

So that Roe v. Wade compared to Brown vs Board of Education is not super precedent.

Not super precedent as I was using that term in the articles that have been referred to.

Let me tell you, from a common sense point of view why it’s not super precedent. I have legislation, 14 states have passed a law that I’m trying to get passed up here, that in the fifth month of pregnancy, 20 weeks, an unborn child is capable of feeling pain. I’m making the argument. There’s a compelling state interest to protect that unborn child from a very painful death called abortion. There’s only seven nations on the entire planet that allow abortion on demand in the fifth month. Now, that’s a political exercise we’re going through. 14 states have passed a version of what I’ve just described. That will be coming to the court, I would imagine, in the future. All I ask is, will you listen to both sides of the argument if it gets to you?

I will.

Thank you. Judge, all I can say, I’ve met a lot of people in this business and very impressive people. One of the highlights of my time on the committee is to get to meet incredibly talented, smart, squared away people. Judge, Justice Roberts sat right before you and didn’t have a note. A lot of people on my side are upset with him about this or that. Sometimes I disagree with him, but I do know this, that he’s doing what he thinks is best for the court and for the country. Justice Sotomayor and Kagan, delightful people, incredibly, wickedly, smart, Justice Kagan had a biting sense of humor and they’re on the court because they should be. They’re on the court because they live lives worthy of being on the court. They’re on the court because they’re some of the smartest people in the land about the law. They’re on the court because they lived incredibly productive and meaningful lives.

Justice Gorsuch and Kavanaugh are both on the court for the same reasons. As to you, you’re every bit in their league. In my view, this is exactly where you should be going to the Supreme Court that the United States of America will benefit from your participation at the Supreme Court. You will offer a point of view that me and some Americans share. You will have life experiences that will round out the court. You will apply the law to the facts and that you are going to inspire a lot of young women, just like justice Ginsburg did, just like Justice Sotomayor and Kagan did, and the young women that you’re going to inspire don’t have a whole lot of role models they can point to in terms of the media world in which we live in uplifting them. That’s about to change.

To my Democratic colleagues, I understand where you’re coming from. I understand what you want the court to do. You want the court to do things differently than we do. I don’t question your motives and I want to thank you for conducting this hearing in a way that has been respectful, has been challenging and the process will be moving forward here, and from the committee’s point of view, I think we’re on track to do it in a way that hopefully people will say, “Even though you disagree, strongly, you’re not that disagreeable.” Senator Feinstein.

Senator Dianne Feinstein: (03:47:56)
Thanks very much, Mr. Chairman. Judge, I must say, I’m delighted to see your family here again and I hope they feel that very special sense of pride in you. I’m sure they do. I think, I was thinking of my children and grandchildren and this is really a once in a lifetime occasion. So I hope they find it very special in their lives.

Thank you, Senator.

You’re welcome. Yesterday, you spoke of California v. Texas, the current case seeking to strike down the Affordable Care Act. You said, “I think that the issue before the court is severability, meaning whether the court can still uphold the Affordable Care Act if it rules that the individual mandate is unconstitutional.” You said yesterday, “This question was not before the court.” As I understand this Chief Justice Roberts and the majority did involve the issue of severability in a case known as the NFIB, National Federation of Independent Business v. Sebelius. There, the Chief Justice and the five-four majority that included Justice Ginsburg struck down one part of the law, the Medicaid expansion provision, but allowed the rest of the law to stand because they found it was severable from the portion they struck down.

Justice Scalia dissented from this conclusion, stated that, “The unconstitutionality of the individual mandate and the Medicaid expansion requires the invalidation of the Affordable Care Act’s other provisions.” In other words, the Justice believed that the law was not severable and the entire law had to be struck down, including provisions protecting people with pre-existing conditions. You have been close to the Justice’s philosophy and in these hearings, you’d also said that this doesn’t mean you would reach all the same conclusions. So can you explain to us today how you would disagree or agree with justice Scalia’s view of severability in that NFIB, National Federation of Independent Business case?

Well, I think I can say without expressing disagreement or agreement for the reasons I said yesterday, not being able to grade precedents, the severability issue, first of all, the majority holding as you recognized was that even though the Medicaid provision was unconstitutional, it was separable. So Justice Scalia expressed his view and dissent, even by Justice Scalia’s view, the issue would be different in California versus Texas. For two reasons, one, Justice Scalia thought two provisions of the constitution were unconstitutional. So if you picture severability being like a Jenga game, and it’s kind of if you pull one out, can you pull it out while it all stands? Or if you pull two out, will it still stand?

So Justice Scalia, his view was that if you pulled those two provisions out, could it still stand? Here, we’re talking about one, and also Congress has amended the statute since NFIB versus Sebelius and it zeroed out the mandate. So now, I mean, California versus Texas involves a different provision because of the zeroing out that was done by amendment. So that’s how the two cases present slightly different issues.

What do you think of all that?

What do I think of-

Yes.

Of severability or-

In that instance?

I think the doctrine of severability, as it’s been described by the court, serves a valuable function of trying not to undo your work when you wouldn’t want a court to undo your work. Severability strives to look at a statute as a whole and say, “Would Congress have considered this provision so vital that kind of in the Jenga game, pulling it out, Congress wouldn’t want the statute anymore?” So it it’s designed to effectuate your intent, but severability is designed to say, “Well, would Congress still want the statute to stand even with this provision gone? Would Congress still pass the same statute without it?” So I think, in so far as it tries to effectuate with Congress would have wanted, it’s the court and Congress working hand in hand.

Thank you. That’s quite a definition. I’m really impressed. Thank you. Some have argued that the Medicare program is unconstitutional. Well, it’s an unconstitutional exercise in congressional spending power. They believe that the spending power does not exist at all. In talking about Medicare and social security, professor Mike Rappaport of the University of San Diego Law wrote this, “It is worth remembering that these programs would never have taken their pernicious form if the Constitution’s original meaning had been followed in the first place.” Do you agree with originalists who say that the Medicare program is unconstitutional, and if so, why?

I’m not familiar with that article by professor Rappaport so I don’t know what reasoning he advances for claiming that the spending power as exercised in things like the Medicaid provision would be unconstitutional.

Well, it’s in Law and Liberty, July 23rd, 2015. But the question is, do you agree with originalists who say that the Medicare program is unconstitutional?

Well, let’s see. So I think I can’t answer that question in the abstract, because as we’ve talked about the no hints, no forecasts, no previews rule. I also don’t know what the arguments would be. So I assume professor Rappaport lays out a case, but it’s not a question that I’ve ever considered before, but if I did consider it, it would be in the context of an actual case or controversy.

Well, I thank you. It’s hard for me to believe that that’s a real question because I think the Medicare program is really sacrosanct in this country. But let me ask you, last April in the midst of the COVID 19 pandemic, the Supreme Court prevented Wisconsin from implementing a district court order that would have extended the state’s deadline for submitting absentee ballot. This would have given voters greater flexibility in casting absentee ballots for Wisconsin’s primary election. Justice Ginsburg dissented. She criticized the court’s majority for putting its head in the sand with regard to the risks posed by COVID-19. She emphasized that courts and election officials must be able to react to a grave, rapidly developing public health crisis and she noted that the Supreme Court’s “suggestion that the current situation is not substantially different from an ordinary election boggles the mind.” Would you agree and what is your position?

Well, Senator Feinstein, that’s obviously a very recent case. In that case, the court had to address the constitutional question. So again, it’s one of those things that I can’t answer both because it would be requiring me to grade and express agreement or disagreement with the Supreme Court opinion, but also it’s the kind of case that could come up in a closely related form, either on the Seventh Circuit, Wisconsin is within the Seventh Circuit’s jurisdiction, or on the Supreme Court.

Okay. Let me try again with something. After President Trump announced your nomination to the Supreme Court, you discussed the judicial philosophy of the late Justice Antonin Scalia. Specifically, you stated, “His judicial philosophy is mine.” During oral arguments in the 2013 case Shelby County v. Holder, Justice Scalia questioned the strong congressional support for reenactment of the Voting Rights Act. He argued that this support was not attributable to the fact that we need the Voting Rights Act. Rather, he stated that he believed Congress reenacted the bill due to a “phenomenon that’s called perpetuation of racial entitlement.” What is your reading of this and your understanding of the history of the Voting Rights Act?

Well, when I said that Justice Scalia’s philosophy is mine too, I certainly didn’t mean to say that every sentence that came out of Justice Scalia’s mouth or every sentence that he wrote is one that I would agree with. When I said Justice Scalia’s philosophy is mine too, what I meant is that his jurisprudential approach to text, as we’ve talked about, originalism and textualism, is the same that I would take. I think as for the Voting Rights Act, I think that it was obviously a triumph in the Civil Rights Movement.

Well, the question arises in my mind, of course, my view is that we always need this. This is a bulwark of our democracy. So need, I think, is something that may be somewhat subjective. Do you agree with that?

That need is subjective?

Yes. That I think we do need a Voting Rights Act and it’s objective in that sense.

Well, I think Senator Feinstein, the question of how the coverage formula is calculated and the Voting Rights Act and the contours of the Voting Rights Act and whether Shelby County was rightly decided or not are all questions on which I can’t give an answer because Shelby County has obviously been controversial. It’s likely to be re-litigated. It could come up before me I’m on the court.

Well, let me give you… Because I think this is really important because it shows the basic philosophical bent of an individual. For me, the Voting Rights Act is extremely important and it defines our election system to a great extent. It’s hard for me to understand that anyone would want to do away with it. What is your position in that regard?

As I understand Shelby County, it said that the coverage formula was outdated from the 1960s for subjecting the particular states requiring them to get pre-clearance. It’s my understanding, and I haven’t looked at the case in a while, that everything else about the Voting Rights Act remained intact, including its prohibitions on discrimination and elections. It was just the coverage formula, which decided which states were subject to pre-clearance.

Well, let me ask you this question, and this is a hard one. Do you agree with Justice Scalia’s assertion that the Voting Rights Act is a “perpetuation of racial entitlement”?

Well, Senator Feinstein, I don’t obviously know what Justice Scalia was thinking when he said that, and any characterization of the Voting Rights Act or a statement like that is simply really not something I can opine on because that’s tied in, I would think, with the Shelby County questions.

Well, can you opine, I’m not asking for a formal opinion, but would you believe that it’s a perpetuation of racial entitlement?

Well, Senator Feinstein, I think that goes to the question of whether the coverage formula was outdated and needed to be updated from the 1960s or not. I take that to be the thrust of the disagreement in Shelby County and the position that Justice Scalia was taking. So again, I can’t express a view on Shelby County and whether the majority or dissent had the better of the argument.

Senator Diane Feinstein: (00:57)
Okay, let me move on to worker’s rights and age discrimination. In a 2019 case, Kleber v. CareFusion Corporation, you joined a majority of the seventh circuit judges in holding that age discrimination in employment does not protect job applicants against employment practices that have a disproportionately harmful impact on older applicants. The opinion you joined, as I understand it, dismissed a claim brought by a 58-year-old lawyer who was passed over for a job that was offered to a 29-year-old applicant with less experience. I’m concerned by the implications of the decision. According to AARP, approximately 35% of the United States population is now 50 years or older. Almost 29% of households are headed by someone near or past retirement age who have no savings or pension. According to the EEOC, study after study has shown age discrimination, “Remains a significant barrier for older workers.” An older applicants are more frequently denied job interviews than middle age applicants. Additionally, older and middle aged women are subjected to more age discrimination than men.

The EEOC has found that the great recession during President Bush’s administration “Forced many older workers to revive their retirement plans to work longer to recoup drained retirement accounts and lost savings.” So here’s the question, because I think it’s going to be an increasing problem for the court. What do you understand to be the purpose of the Age Discrimination In Employment Act?

Well in Kleber v. CareFusion, I joined a majority of the on bunk court, so that was a case that we heard as a full court. And the question is whether the prohibition on age discrimination covered applicants or only employees, and the statute said employees. And so an applicant isn’t an employee. So the majority said that the statute by its terms didn’t cover the conduct. But I think that’s an instance … I talked yesterday quite a bit about whose role it is to update statutes or extend them. And I think that’s an instance in which Congress could well address this problem by amending the statute to include applicants in it.

So where would you stand on the general subject matter?

Well, since I can’t impose the law of Amy, that would be up to the Congress to decide, or many state legislatures have different anti-discrimination prohibitions that offer even more protection than some federal statutes.

Okay, let’s talk for a moment. In 2013, you wrote, and this is a quote. “I tend to agree with those who say that a justice’s duty is to the Constitution. And that thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly conflicts with it.” If you are presented with a case where your view of the Constitution conflicts with Supreme Court precedent, what will control your decision, your understanding of the Constitution or precedent?

Senator Feinstein, I’m really glad that you brought that up because that quote was mentioned a lot yesterday, and I’m happy to have an opportunity to explain the context.

Good.

That entire article … I mean, I think that there’s been some misunderstanding perhaps because that sentence, first of all, it was citing a footnote to both an originalist scholar and a progressive constitutionalist. But the whole article was defending the Supreme Court’s current doctrine, which accords constitutional precedent, weaker stare decisis effect than say statutory precedent, and I mentioned that yesterday. Against claims that we should have no doctrine of stare decisis at all, and against claims that it should be absolute and completely tie the court’s hands. So I actually wasn’t arguing for any alteration to stare decisis doctrine. I was saying, this is how it is, this is how the Supreme court does it, and that’s right. And another couple of sentences in there, which I think might put my perspective in context, I said, a new majority cannot impose its vision only with votes. Now I’m paraphrasing myself, it must be very sure that its interpretation of the Constitution is the right one. And that reliance interests, et cetera, don’t counsel in favor of it’s overruling, paraphrased.

And then the next sentence was something to the effect of, an uncertainty in that regard councils in favor of preserving the status quo. So that sentence, if it’s just read alone, makes it sound like I’m arguing for the over-

Senator Lindsey Graham: (06:58)
Sorry about the interruption there. Senator Tillis.

Senator.

Oh, your time’s up. Senator Blumenthal.

Senator Richard Blumenthal: (07:13)
Thank you, Mr. Chairman. That was almost the shortest questioning session you ever had.

I was getting ready to defend you and say, oh no, it was Senator Blumenthal’s turn.

Hard to keep track of us. I entered some letters into the record, Mr. Chairman, I believe before we broke.

Yes, sir, without objection.

And I began my questioning about the third circuit opinion and Binderup, I believe that you would agree that decision applied to misdemeanor offenses, correct?

Yes, yes.

Not to felons.

Yes, I was thinking of the separate opinion that Judge Hardiman wrote, I think for five and it was a splinter decision, but the holding I agree [crosstalk 00:07:59].

So it really doesn’t support the dissent that you wrote in-

Judge Hardiman’s position does for the five, but you’re right, I had misremembered the common judgment holding for the plurality.

Thank you. I want to ask you also, or clarify the quote that I read to you was from a speech that you gave to the Hillsdale College, May 21, 2019. And it was quote, about your opinion, dissenting opinion and Cantor, “It sounds kind of radical to say felons can have firearms.” So I just want to clarify that was the source of the quote that I read you.

Yes, thank you. I too had looked at that because I was pretty sure I had it in the opinion. So I think, yes, it was in the course of explaining the opinion to that audience. I was saying, it sounds kind of radical, but then going on to why it wasn’t and the reasoning. But yes, thank you for correcting that, Senator.

Thank you. I also want to go back to another aspect of our conversation because Senator Graham asked about it this morning. I showed you a letter that you signed from 2013 by the Notre Dame Faculty for Life and specifically a sentence, “We renew our call for the unborn to be protected in law and welcome in life.” And then I asked you about the IVF procedure, whether it could be banned criminally under the Constitution. And you said to me that you couldn’t answer that question in the abstract. You said, “We can’t answer questions in the abstract.” I asked you about your legal opinion and position, not your personal beliefs or religious views, you understand that point?

Yes yes.

And I am disappointed that evidently you can’t tell us or the American people, whether you believe or your legal position is that IVF can be constitutionally banned. Because so many Americans depend on this medical procedure for the ability to have children. I also want to ask you, should courts, specifically the Supreme Court be deciding the next presidential election?

So the presidential election as with all elections is a matter put to the voters to cast ballots.

But the presumption should be against the courts deciding an election. It’s the people and the voters who should decide, correct?

Let’s see, Senator Blumenthal, so I think that occasions on which courts adjudicate election disputes are designed to protect the voters choice and the right to vote. So of course, the Supreme Court doesn’t cast ballots, voters cast ballots, and election law is designed to protect the right to vote.

The courts should do everything possible to avoid embroiling themselves in elective politics.

Rucho v. Common Cause says that for example, gerrymandering is a political question because it’s difficult in many circumstances for courts to develop judicially manageable standards to-

Presumption should be against courts getting involved. Let me ask you about some precedents and I’m asking not about super precedents. And as you define super precedents, they are cases so well settled that no political actions, no people seriously push for their overturning. I’m not asking you about what other people may think about these cases, or may do about them. And I’m not asking you hypotheticals, these are real cases. First, Brown v. Board of Education, do you think it was correctly decided? I know you told Senator Graham you thought so, I’d like you just to clarify that point.

Sure. So as I said to Senator Graham when he asked me that question, I have spoken on that before in the originalism lecture that I give- [crosstalk 00:12:21].

As you sit here, correctly decided, right?

Correctly decided, and yes, I’ve said that.

Thank you. Let me ask you about Loving v. … The Loving case. Do you think that was correctly decided?

Well, Loving follows directly from Brown. Brown is correctly decided, Loving as well.

It was correctly decided.

It was correctly decided.

Thank you. Now let’s talk about Griswold, correctly decided?

Well, Senator Blumenthal, the reason-

I know you gave an answer … excuse me, for interrupting.

Yes.

I know you gave an answer to Senator Coons, but this issue is more than academic, that was a word that you used. You said that it’s very, very, very, very, very unlikely to be challenged and maybe. But all the more reason that you should be willing to tell the American people it was correctly decided. I’m asking about your legal position. Would you have been in the majority?

Well, Senator, I have a couple of things on that. One, is that the reason why I expressed a view on Brown to Senator Graham is that I do think what I have said in print, either in my scholarly work or in judicial opinions is fair game. And I have expressly said in the past in the originalism lecture that I’ve given repeatedly, that Brown was correctly decided. So I think that was fair game and Loving is indistinguishable from Brown. It flows directly from it [crosstalk 00:13:53].

Loving involved interracial marriage and Griswold involves a ban on contraception. A criminal ban on the use of contraceptives, which in turn also involves Eisenstadt v. Baird. These are fundamental cases, and I’m asking your legal position. I want you to keep in mind how many people are listening and watching because they may take a message from what you say. They may see what you say and be deterred from using contraceptives, or may feel the fear that it could be bad.

Well, Senator Blumenthal, the position that I’ve taken is whether a question is easy or hard, that I can’t offer an answer to it. And I would be surprised if people were afraid that birth control was about to be criminalized because I said to Senator Coons [crosstalk 00:14:57].

You may be surprised, but Chief Justice Roberts said, “I agree with the Griswold court’s conclusion that marital privacy extends to contraception.” Justice Kennedy, “If a hypothetical case were to be imagined that better fits within the privacy that I believe the constitution protects. I couldn’t think of a hypothetical better than Griswold,” At his hearing, Justice. Thomas said, “I believe the approach that Justice Harlan took in Poe v. Ullman and reaffirmed again in Griswold in determining the right to privacy was the appropriate way to go.” And he reaffirmed Eisenstadt v. Baird. I’m stunned that you’re not willing to say an unequivocal yes, it was correctly decided, I would have been in the majority. Lawrence v. Texas, which held that the government cannot criminalize gay and lesbian relationships. Was it correctly decided?

Senator Blumenthal, I again, I’ve said throughout the hearing that I can’t grade precedent in the words of Justice Kagan, give it a thumbs up or a thumbs down [crosstalk 00:16:12].

So you can’t give me a yes or no answer. Again, forgive me for interrupting but my time is limited.

Well, Senator Blumenthal, I can’t give a yes or a no. And my declining to give an answer doesn’t suggest disagreement or agreement. And it certainly shouldn’t suggest that [crosstalk 00:16:30].

Your legal position, Judge, not your moral position, not a policy position, not a religious faith position. A legal position correctly decided Obergefell v. Hodges.

Senator Blumenthal, every time you ask me a question about whether a case was correctly decided or not, I cannot answer that question because I cannot suggest agreement or disagreement with precedence of the Supreme Court. All of those precedents bind me now as a seventh circuit judge and were I to be confirmed, I would be responsible for applying the law stare decisis to all of them.

But Your Honor, think of how you would feel as a gay or lesbian American, to hear that you can’t answer whether the government can make it a crime for them to have that relationship. Whether the government can enable people who are happily married to continue that relationship. Think of how you would feel.

Well, Senator, implying that I’m poised to say that I want to cast a vote to overrule Obergefell, and I assure you I don’t have any agenda. And I’m not even expressing a view in disagreement of Obergefell. You’re pushing me to try to violate the judicial canons of ethics and to offer advisory opinions, and I won’t do that.

Judge, you yourself wrote in 2016 an article that you co-wrote with John Nagel, it’s called Congressional Originalism, “A confirmation hearing answering hypothetical questions about the soundness of particular precedence is par for the course.” It is par for the course because Americans want to know your legal positions on these issues. And they have a right to know, they deserve and need to know. And I am surprised and I think a lot of Americans will be scared by the idea that people who want to simply marry or have relationship with the person they love could find it criminalized, could find marriage equality cut back. I think it would be an America where I wouldn’t want to live.

Well Senator to suggest that that’s the kind of America I want to create isn’t based on any facts in my record. And that quote that you read to me from the article, talked about it being par for the course for those questions to be asked. But didn’t say anything about whether it was appropriate for nominees to answer them.

Others have answered that same question and I’m disappointed that you won’t. Let me move on to another area. Last month, the New York Times published a series of bombshell reports dealing with the current state of the President’s finances. There were a lot of revelations in that report, including that the President himself is responsible for loans totaling $421 million. Most of which is coming due within four years, that amount of personal debt makes the president vulnerable to leverage, to manipulation, to coercion. His vulnerability makes him a threat to our national security. I’m not going to ask you about that aspect of his finances or that he paid only $750 in income taxes in 2016 and 2017. I want to ask you about a fact that is critical constitutionally. During his first two years in office, the President received $73 million from foreign sources. Now in the interest of full disclosure, I just want to say I led a lawsuit involving 200 of my colleagues, challenging the President’s receipt of those foreign benefits, and foreign payments as a violation of the Emoluments Clause.

And we cited as well, other payments and benefits that he received from India, Afghanistan, Kuwait, Qatar, Malaysia, Saudi Arabia, Slovakia, and Thailand, and more in violation of the Emoluments Clause. And we’ve been talking a lot about originalism. The Emoluments Clause was the premier anti-corruption clause in the United States Constitution. As Edmund Randolph of Virginia said specifically, the clause was intended to “prevent corruption” by “prohibiting anyone in office from receiving or holding any emoluments from foreign states.” The lawsuit that I led was denied certiorari yesterday by the United States Supreme Court, the D.C. Circuit Court Of Appeals ruled against us on the limited technical issue of standing. It didn’t deal with [inaudible 00:22:13]. I hope that you will keep in mind the danger of corruption and the need to give citizens standing to enforce laws that prohibit corruption. Nobody is above the law. You stated that position very well. And enforcement of laws that prevent corruption is vital. And my view is that the President, any president must be held accountable. Do you agree?

No man is above the law. I agree with that as I’ve stated very clearly before. And I also want to assure you Senator Blumenthal, that I will apply all laws and come to an open mind with all laws, including laws dealing with anti-corruption.

Let me ask you about a topic that really hasn’t arisen much here, climate change. One of my colleagues, Senator Kennedy asked you about it late in the hearing yesterday. And your answer was, “You know, I’m not a scientist. I have read things about climate change. I would not say I have firm views on it.” You believe that human beings cause global warming?

Well, Senator Blumenthal, I don’t think I am competent to opine on what causes global warming or not, so I [crosstalk 00:23:44].

We all have views on it [crosstalk 00:00:23:48]. I’m asking for your opinion.

I don’t think that my views on global warming or climate change are relevant to the job I would do as a judge, nor do I feel like I have views that are informed enough, and I haven’t studied scientific data. I’m not really in a position to offer any kind of informed opinion on what I think causes global-

I understand. And again, I apologize for interrupting. Do you agree with the President on his views of climate change?

I don’t know that I have seen the President’s expression of his views on climate change.

Okay. Let me ask you on another area. Are you aware of the Supreme Court as it’s called, shadow docket?

I am.

Essentially this docket consists of cases that are decided often stays or extension of orders without an opinion, correct?

Correct.

And as a matter of fact, in the denial of certiorari in Blumenthal v. Trump yesterday, there was no opinion providing the reasons why they did so. We don’t even know how many justices supported the decision, except that it must’ve been at least five. And despite detailed reasoning from lower courts, which we challenge, about the issues, there was no opinion. And the same was true of the census decision, as you know. So don’t you think there should be transparency on the part of the Supreme Court?

I think that the court in the practice of denying strict petitions routinely and the shadow docket has become a hot topic in the last couple of years. But even when I was clerking on the court in 1998, it was not typical for the court to issue opinions explaining why cert was denied. Although sometimes they were dissents from the denial of certiorari, which have opinions. But as far as I know, it’s never been the routine practice of the court to have opinions-

My time is limited, but I just want to leave you with the very strong message because increasingly the court has turned to this shadow docket. In fact, it’s growing larger. It’s up to 6,000 cases every year. Where it rules without an opinion and without disclosing who voted which way. That strikes me as anti-democratic with a small d, it decides only about 80 cases on its merits docket every year. Which is smaller than when I was a law clerk on the court and probably when you were a law clerk as well. So fewer cases accountable and less transparency. I am going to conclude here. I just want to say, we tried to bring into this room real people who were going to be affected by your decisions. Some of them will lose their coverage. In fact, millions of Americans, including Connor Kern will lose his coverage under the Affordable Care Act, if he’s denied the protection to people with pre-existing conditions. Legislative activism from the bench, and the kind of activism that I fear you will bring to the bench is one of [silence 00:27:39] against your nomination.

I understand, Senator. [inaudible 00:27:48].

I think it happened again [inaudible 00:28:07]. Hello, hello, hello. I apologize, [inaudible 00:28:43].

Thank you, let me finish on this note. I’m also equally disappointed that you’re unable or unwilling to state your legal position on whether it’s okay to [inaudible 00:29:01] correctly decided. There have been a lot of references to the Ginsberg rule, I think this administration has taken the Ginsberg rule to a new level. I hope it won’t be known as the Barrett rule of avoiding responses to questions. But I think that other nominees for lower courts [inaudible 00:29:33] and urge the administration to be encouraged, it’s not [inaudible 00:29:38] to be more forthright to us because the American people and all of us have a right to those [inaudible 00:29:45] and I thank you for being here.

Senator Tillis.

Senator Thom Tillis: (29:51)
Thank you Mr. Chairman and thank you again Judge Barrett for your [inaudible 00:29:57]. Before I get started, I just want to share Senator Cornyn and Senator Cruz that I [inaudible 00:30:00] Houston Astros because I believe Senator Sasse [inaudible 00:30:06]. Judge Barrett, I have one question for you, out of four cases, U.S. v. Lopez, D.C. v. Heller, Hobby Lobby v. Burwell [inaudible 00:30:25].

Speaker 1: (30:16)
Microphone’s not working.

Let’s take a five or 10 minute break.

Senator Patrick Leahy: (31:15)
Incidentally, for those who are watching and think that we may be polarized on things, I listened to what Senator Grassley said about cameras in the courtroom. And of course I agree with him on that. And he knows I have supported that. I’ve also joined with him in the appeal of the [inaudible 00:31:42] improvement. So there are many areas in our community where senators have worked together. And I would ask, Mr. Chairman and probably could unanimous consent that letters from 10 former federal judges were opposed to the process of this nomination. Along with letters of opposition to the nomination are People for the American Way, [inaudible 00:32:10] and 208 women lawyers that they be inserted in the record.

Without objection.

Somebody is going to hand you those letters, I can’t quite reach them from my room here. Now, Judge Barrett. It was good to see you again. Again, I commend your children. I’m sure this has fascinating but I’m sure it’s a long day. And I’m sure you probably felt the same way, but this is part of democracy and it’s important that we have these questions. Now we’re being told that no one could possibly know how you would rule in the latest Republican led case to overturn the Affordable Care Act. But what we do know is that you criticized Chief Justice Roberts opinion in NFIB v. Sebelius. You stated that Robert’s pushed the ACA beyond its plausible meaning to save the statute. And then you praised the dissent in King v. Burwell. So it seems every time you weighed in on legality of the statute, you come to one conclusion, the Affordable Care Act is unconstitutional.

Now over the past two weeks, you provided this committee all of us with some 1,800 pages of your writings and speeches for us to review, and I have. I may have missed something in that, but did you ever write or speak out in defense of the ACA?

Senator Leahy, I just wanted to make one correction King v. Burwell wasn’t a case about whether the Affordable-

… versus Burwell wasn’t a case about whether the Affordable Care Act was constitutional or not. That one was purely a question of statutory interpretation. So, just to make clear about that.

Senator Leahy: (34:10)
But you did … [inaudible 00:00:13], you did praise the dissent [crosstalk 00:34:16] not the [inaudible 00:34:15].

I did. In a radio interview. I said that I thought the dissent had the better of the statutory interpretation argument. I have a couple of things, I guess, that maybe might help shed some light on this question. One is that, of course, in both of those contexts, I was speaking as an academic. And as I mentioned yesterday, an academic serves a very different function than a judge. So, an academic doesn’t go through the judicial process, doesn’t hear the case or controversy, have the litigants and the briefs and the consultation with colleagues. The writing of an opinion-

Judge, we all understand that, but that’s not my question. My question was, did you ever write or speak out in defense of the ACA whether as a academic or as a number of the judiciary? That’s a pretty simple question. Could be [inaudible 00:35:11] yes or no?

No. I’ve never had occasion to speak on the policy question.

Thank you. And so, every time you’ve weighed in on it, you said the law is unconstitutional. Now [crosstalk 00:01:23]-

Sorry. I thought you were done.

Well, in the court … of course have to under … under [inaudible 00:35:33] severability, standing, constitutionality. And you haven’t written on severability of the ACA, have you?

I have not.

Thank you. And now, here’s a quote that I’m sure you’re familiar with in preparing for this. It has been used in the last few days. Quote is, “Throwing out pre-clearance when it has worked and is continuing to work, to stop discriminatory changes, is like throwing away your umbrella in a rainstorm because you’re not getting wet.” Have you heard that quote before?

I believe that’s from the dissent in Shelby County.

By Justice Ginsburg. Is that correct?

I believe so.

Actually, it is. She was talking about and worrying about striking down section five of the Voting Rights Act. Now Shelby County, it was almost like immediately after Shelby County came down, states started making changes. 20 states enacted new restrictions on voting and some of those restrictions have been horrendous. Do you know how many polling places have arbitrarily been closed across the country since the Shelby decision?

I do not know Senator Leahy.

I’ll help you there. It’s at least 1600. Now, following the Shelby decision, do you know how many voters were purged from voting roles?

I do not know.

Roughly 16 million. That’s about 30 times the population in my state. African Americans with felonies are four times more likely to be disenfranchised than other Americans with felony convictions. And non-White voters are seven times more likely to wait in line for more than an hour than … I mean Black voters wait longer in line than White voters. I mention this because … this is a picture from the Cobb County, Georgia. Look at the lines. African Americans make up the majority. Look at that line. I suspect neither you nor I have ever had to wait in line like that to vote.

In fact, the press reported that today, those lines could be 10 hours long. People talked about, well, we give you racial entitlement. This is not entitlement for any Americans. This is not entitlement. This is turning our back on democracy. This is saying, “You can’t vote,” or, “We’re going to make it so difficult for you to vote, you can’t.” Harris County in Texas, which has population many times of that of my state has one early voting spot. People have to drive for hours and wait in line for hours to get there. Would you accept the fact or would you acknowledge the fact that communities of color disproportionately face restrictions and obstacles when they are casting their ballot?

Senator, I wasn’t aware of the statistics that you were citing to me. If it became relevant in any case that was litigated before me and was presented to me, I would of course have an open mind about it.

Well, I talk about this because I know you have spoken [inaudible 00:40:06] much like former Justice Scalia who I note was a friend of mine. But I disagreed with him on many things. He talked about racial entitlement. It’s not racial entitlement when Blacks have to stand in line for ten hours to vote. And Justice Ginsburg, of course, dissented and shall be … She knew what the consequences would be. I only mention that because it’s okay for a judge not to close his or her eyes to reality. Now, I asked you last week, what Justice Barrett would do it for President or even a Senator did not follow a Supreme Court decision. You declined. You said the question may come before you. I then asked if the Supreme Court would have the final word. You stated the Supreme Court would have the final word as far as the lower courts are concerned.

And that surprised me and it concerned me. And I’ll tell you why. I asked justice Gorsuch and I asked Justice Kavanaugh those questions. I asked them what happens then? And they made it clear that a President can not refuse to comply with a court order. And the Supreme Court’s word is the final word on that matter. That’s what Justice Gorsuch and justice Kavanaugh said. So, I would ask you this. Do you agree that a President must follow a court order and the Supreme Court’s word is final? Or is the Supreme Court’s word only final as far as the lower courts are concerned.

Senator Leahy, I’m glad to have the opportunity to clarify from our conversation. First, I know that both Justices Gorsuch and Kavanaugh said that no man is above the law. And I agree with that. But I conversed with Senator Lee yesterday about Federalist 78, which says that courts have neither force nor will. In other words, we can’t do anything to enforce our own judgements. And so, what I meant in the conversation with you is that as a matter of law, the Supreme Court may have the final word, but the Supreme Court lacks control over what happens after that. The Supreme Court and any federal court has no power, no force, and no will. So, it relies on the other branches to react to its judgements accordingly.

I remember as a young law student having lunch. Our honor society at Georgetown was able to have lunch with the members of the Supreme Court. I sat with Justice Hugo Black. He told me what happened with Brown v. Board of Education. And the court knew that was going to be a very, very tough case. And what did they do? They waited until they had a unanimous opinion because they knew that the President would have to, and the Congress would have to enforce their law. So, let me ask you this. Of course, the Supreme Court has no army. They didn’t have no force. But they do have a force of law. And is a president who refuses to comply with a court order, a threat to our constitutional system of checks and balances?

Senator Leahy, I think the example of Brown is a perfect one in this instance, because the Supreme Court in Brown of course held that segregation violated the equal protection clause. That was the law. But as you know, there was resistance to that decision. And so, it wasn’t until the national guard came in and forced Governor Faubus to allow-

Speaker 2: (44:17)
Sorry, Judge and sorry to everybody, but technical problems happen. And hopefully we can press on. Senator Tillis.

Senator Tillis: (44:25)
Judge Barrett. Thank you again. Four cases. US v. Lopez, DC v. Heller, Hobby Lobby v. Burwell, Washington v. Glucksberg. Were they correctly decided?

[inaudible 00:10:40].

Got to put your mic on.

Is it working now?

Yeah.

Okay. Good. Senator Tillis, I can’t express a view on the correctness of any precedent.

So, I think it’s pretty clear that it’s not just cases favored by my democratic friends. You’re taking a very consistent position and I think the American people should understand that. Thank you.

I had a sheriff in White County, in North Carolina. You have to apply for a permit to purchase a handgun in North Carolina. And for a period of time, the sheriff of White County refused to process handgun permits. He has subsequently reversed that policy. So, it’s no longer an active case, but it would seem to me that that sheriff was making a decision that wades into, I think, a second amendment, right. How would you evaluate a case like that if it came before you?

So, if a case like that matured into litigation and went up the appellate process, I mean, I would look at the law and obviously the second amendment would be relevant there. So, I would read all applicable precedents, including Heller, to determine whether what the sheriff had done violated the second amendment right or not.

Well, I think in that case, it did, but I would leave it to somebody far more qualified than you to take it forward. And I suspect it will if the sheriff reimposed is the same imposition on lawful gun owners. I thought about this when Senator Hawley was asking a similar question. I’ve finished my 68th telephone town hall since the first case was reported in North Carolina. And about a month into it, everybody understood that we had to shut things down, try to understand how COVID was affecting us. But then about four to six weeks later, we saw peaceful protests, some of which were hijacked, and we’ve seen them widely reported, allowed by certain liberal governors and other elected officials and towns and counties. But at the same time, they prevented churches from being able to worship. You enumerated the protections, the specific protections under the first amendment, and I think religion and protest are two of them. Do you feel like any governmental entity has a right on the one hand to allow these protests to occur and on the other hand, prevent worship in temples synagogues, mosques, or any place of worship?

Well, Senator those kinds of cases are being litigated all around the country right now. Some have gone up to the Supreme Court on a couple of different orders. So, those aren’t things that I would be able to comment on.

Are you able to opine at all on how you would go about evaluating the arguments?

Sure. So, whenever you have that kind of a restriction, like as we are in a pandemic, the Supreme Court’s general position is that the government has a compelling interest in responding to a health crisis of this sort. So, you look at the case law describing the extent of the state’s authority to address a public health crisis. It’s come up before in, in case involving vaccination. Then you also … and this was clear in my interchange with Senator Holly, you also look at the other amendments and other rights at play. So, in the case that I had, it involved the first amendment, looking at the speech and free exercise clauses of that amendment. So, those come into play as well.

Thank you. When you and I met a couple of weeks ago, I have to thank you again, my daughter was thrilled that you signed the two pocket constitutions for my two granddaughters and they’ll cherish it someday when I can explain what it really means. It’s going to take a few more years. One is three and the other one’s eight weeks. But I really enjoyed that discussion and I asked you there something I’d like for you to share with the committee. You have stellar academic credentials, you have stellar record as a professor, and you’ve done an excellent job on the seventh circuit. You’ve been a great mother and a wife. You have so many options. There are so many things that you could be doing besides going through the first confirmation hearing, which was not pleasant. I was here and I remember it. And you knew that this was even going to be more challenging. So, I asked you when we met, why would you do this, knowing how this was going to play out, knowing that you were going to be attacked and unfairly treated? And I think to a level to maybe where some of your constitutional rights have been questionably denied. So, why are you doing this Judge Barrett? Why not just say thanks, but no thanks, leave it for somebody else?

Well, as I said to Senator Graham yesterday … and I think this was part and parcel of the conversation that you and I had, that this is a very difficult process. Actually, I think I’ve used the word excruciating over the weeks. And the knowledge that people are going to say horrible things, that your entire life will be combed over, that you’ll be mocked, that your children will be attacked. And so, one might wonder why any sane person would undertake that risk and that task unless it was for the sake of something good. And as I said yesterday to Senator Graham, I do think the rule of law and it’s importance in the United States, and I do think the role of the Supreme Court is important, it’s a great, good.

It would be difficult for anybody in this seat. I think everybody knows the confirmation process is very difficult. And so, for me to say no … I mean, other people could do this job, but the same difficulty would be present for everyone. And so, for me to say I’m not willing to undertake it even though I think this is something important, would be a little cowardly and I wouldn’t be answering a call to serve my country in the way that I was asked.

I also think … in our conversation, I said that my children were part of the reason not to do it because my son Liam got very upset yesterday during the questioning. And so, we had to call him in the car. He didn’t stick it out to the end. I was surprised he stuck it out as long as he did. But Liam got very upset at the questioning and Senator Kennedy referenced some of the other things that have happened to the children in the process. And so, I said to you before any of that happened, that in many ways the children are the reason not to do it, but they’re also the reason to do it, because if we are to protect our institutions and protect the freedoms and protect the rule of law that’s the basis for this society and the freedom that we all enjoy, if we want that for our children and our children’s children, then we need to participate in that work.

Well, I think you’re an extraordinary role model to a lot of people watching. I agree with Senator Blumenthal. A lot of people are watching this and I hope that every one of them conclude that you’re a courageous person and you’re a public servant. I mean, with your credentials and your experience, you could move out of public service and do virtually anything you wanted to and have more time with your family along the way. And the fact that you’re willing to serve is just, I think, an extraordinary testament to your character and your integrity, and I appreciate you for it.

The other thing I wanted to get back to is on the issue of abortion. I think it’s remarkable over the course of the past couple of days, how many times they have … my colleagues on the other side of the aisle have challenged you on this matter. And in the same breath they’re advocating for activism. In one breath they want to secure certain Supreme Court precedent. On the other breath, they want your commitment to potentially overturn it.

But I want to talk specifically about a policy in Gonzalez v. Carhart. I mentioned yesterday late term abortions, partial birth abortions, I’ve thought were horrific all of my life but especially since I held that premature granddaughter of mine who was born three weeks premature. How would you, if a case as a matter of state law or federal law, let’s say Senator Graham’s bill, how would you go about evaluating maybe some laws that would prevent late term abortions, partial birth abortions? How would you go about evaluating that in light of a Gonzalez v. Carhart?

Well, I would look at all the precedents. Casey, as we discussed yesterday, sets out the undue burden standard, which is the test. And then Gonzalez v. Carhart, as you say, upheld a restriction on partial birth abortion. Whole Women’s Health and June Medical are the most recent cases in the abortion line. So, if I were to have to decide a case involving a bill like the one that Senator Graham has referred to, it would involve looking at all of those precedents and their application to the particular contours of the law that was before me.

Thank you. Now I’m going to go in a slightly different direction. I was talking with Senator Coons, who is the ranking member on a committee that I chair, a sub committee here on intellectual property. We’ve done a lot of work and we’re working on a bipartisan bicameral basis. And I have to thank Senator Blumenthal for probably being one of the more active members in this committee. I think it’s an area where we really are working on a bipartisan basis. The things that the public seldom see. But I want to ask you first on antitrust, I know a district court opinion sided with the Federal Trade Commission that found that Qualcomm violated antitrust law. And the ninth circuit overruled that district court decision. I don’t know if you followed it, but the … in the ninth court opinion, they said that Qualcomm was a company just asserting its economic muscle with vigor, imagination, devotion, and ingenuity. I know you can’t speak to that case, but I’m interested in your thoughts generally on antitrust law. Where do you think the court should draw the line on federal antitrust limits between where a company violates an antitrust law, or as Qualcomm was characterized, of just asserting its economic muscle with vigor, imagination, devotion, and ingenuity?

I haven’t followed that case. So, I’m not aware of that case from the ninth circuit. But I would be venturing out into that hypothetical dangerous territory if I tried to articulate what hypothetical line to draw in the context of antitrust law. Because well, as you probably know better than I, just being on the committee, it’s a complex area with lots and lots of precedent and lots and lots of statutory and regulatory law as well.

Moving to another area that’s been addressed on the committee on intellectual property and patent law eligibility. As judge … or judge, I should say, as chairman of the subcommittee, I’m really interested in protecting the intellectual property of the American innovation economy. There’s no question that we’re the leader in the world. But in recent years we’ve seen a lot of Supreme Court cases that have waded into patent eligibility, producing a series of opinions that have really muddled the waters. And in some cases, I think that they … I agree with the decision but I worry about the methodology that they used to get there. So, I’m curious about your thoughts. In my committee, we’ve talked about specific cases that we could potentially abrogate if we could get bipartisan support and we’re in those discussions. But what are your thoughts on the Supreme Court’s rulings on patent eligibility? And do you think that the court should go back and clarify at least the method that they use to reach their opinion?

So, without commenting on any particular cases, which actually I have to be completely honest and confess to, I can’t think of what particular cases you might be thinking of in the patent eligibility. But without commenting on those cases in any event, I think I would say that clarity in decision-making is always something that courts should strive for. And I know on the seventh circuit, we try and I’m trying to be attuned to in writing opinions, whether it gives good guidance to lower courts and then to also those who are trying to order their conduct in compliance with the law. So, I think clarity is certainly a virtue in this context.

And I think that we’re working, like I said, on a bipartisan bicameral basis to help or do it on our part. Copyright law and technology is other area that we’ve focused quite a bit on. I think I had one witness say that our current laws are MySpace laws in a TikTok world. There’s a lot of changes that have occurred. And we feel like there’s a need for us to maybe move forward with some clarity and some protections. The Supreme Court has spent more than a century answering questions about whether copyright law covers new technologies like cameras, player pianos, moving pictures, the list goes on, several internet enabled technologies. Do you think that the Supreme Court is the best institution to answer these questions or is that a role Congress should play?

Most of the things you’re identifying sound to me like matters of policy. And so, those seem like matters that are best addressed by the legislature, a democratically elected body, not policy made by courts.

I agree. I think it’s a complex subject and I’m glad to hear your opinion. And I hope that we make progress on it. And again, I have to thank Senator Coons and Senator Blumenthal and Senator Hirono, who were on that subcommittee, who have … I think we’ve worked well and I’m hopeful that we’ll make progress.

I think Senator Blumenthal asked you about the courts getting involved in elections. But before somebody goes out into the cyber world and says, Nine people are going to decide the outcome of the election, nine votes versus the tens of millions of votes that are being cast now and will be cast by November the third. What you’re potentially going to be confronted with are various lawsuits that may come in based on changes in voting protocols for this cycle versus other ones. But at the end of the day, what role is the court going to play if any in the determination? Nine people are not going to elect the president, regardless of who wins the election. But nine people are going to have to consider various cases. But at the foundation, is it accurate to say that your role will be determining whether or not every single American who wishes to vote had their vote recorded and was given proper access to make that vote? Is that fundamentally what the courts would decide?

Fundamentally, if an election dispute arose. So, obviously the issue, it’s impossible to predict what particular aspect of the election would be challenged. But the laws that would be invoked are laws that protect the right to vote, that keep elections fair. So, those are the kinds of issues that have come up in past election disputes. And so, certainly the court would not see itself as … and would not be electing the President. It would be applying laws that are designed to protect elections and protect the right to vote.

Senator Tillis: (01:00:34)
I also want to thank you, in closing, Mr. Chairman, I want to thank you for reaffirming, I think, in a discussion with Senator Durbin, possibly Senator Hawley, that you believe every single person in this country should have a right to vote and that they should be able to do that without intimidation, without any undue burdens. And I appreciate you reaffirming that and I just want to make sure I heard you right in your responses to other questions. You do feel very strongly that every American should have safe access to the vote. And I, for one, hope that every registered voter in this country vote on November 11th. That may be a stretch goal, but do you agree with that?

Of course, yes.

Senator Tillis: (01:01:19)
Thank you, Judge Barrett. And thank you for your family for enduring all the challenges that you have. Thank you for your courage and thank you for your integrity. I look forward to supporting your nomination.

Thank you, Senator.

Speaker 2: (01:01:31)
Senator Hirono.

Senator Hirono: (01:01:32)
Thank you Mr. Chairman. Today, we’re going through this hearing as though it’s a normal hearing, not a rush job in the midst of a pandemic, 200,000 Americans dead, no pandemic relief bill in sight for the American people, the fate of the ACA at risk. But the Democrats on this committee have asked and will continue to ask you questions to let the American people know that you’re being put on the Supreme Court will dramatically flip the balance of power to the court further, further to the right. Not the fair impartial body we want the Supreme Court to be.

Judge Barrett, yesterday you told ranking member Feinstein quote, “If there were policy differences or policy consequences, those are for this body. For the court, it’s really a question of adhering to the law and going where the law leads and leaving the policy decisions up to you.” That would be us in Congress. The effects of this distinction you made between law and policy, a distinction I described yesterday as artificial, can be seen in a case from earlier this year.

In Cook County v. Wolf, you considered the Trump administration’s dramatic change to the public charge definition, a wealth test to prevent low-income immigrants from entering the United States or becoming permanent residents. The majority found the rule had quote, numerous unexplained, serious flaws, and barred its imposition. You, on the other hand, issued a 40 page dissent calling the rule reasonable. You would have allowed the Trump administration to limit low-income immigrants who might become a public charge.

You called this rule reasonable, despite the harm you knew it would inflict. For example, Illinois has approximately 3.1 million people enrolled in Medicaid, including 388,000 non-citizens and 341,000 citizen children with an immigrant parent. It estimates over 140,000 individuals will disenroll from benefits and public services as a result of the public charge rule. Nationally, about one to three million people have disenrolled or gone without Medicaid coverage due to fear of consequences from the application of the rule to them.

Dana, a community service provider in Colorado can tell you about a single mother who didn’t want to enroll her autistic US citizen child in necessary health and education services. Dana can also tell you about a pregnant woman in her third trimester who sacrificed prenatal care. The effect of the public charge rule has intensified as people forgo testing and treatment for COVID-19, ensuring people will be sicker, more likely to die, and more likely to inadvertently spread the virus.

Sarah who helps provide legal assistance in New York works to lessen the devastating, excuse me, impact of the rule. This includes working with one immigrant living in a shelter, seriously ill with COVID-19 symptoms and unwilling to get tested or treated out of fear for her status. And while the Trump administration admitted … they admitted the rule’s connection to a reduction in public benefit enrollment and food insecurity, housing scarcity, and increased costs for states and localities, it brushed off the impacts and refuse to alter the rule.

Similarly, in your dissent, you also acknowledged that people are disenrolling from health and other programs out of fear. You not only admitted to those disenrollments, you found it unsurprising. Disenrollments reportedly affect nearly one-third, one-third, of all low-income, immigrant families with children. Judge Barrett, just to be clear, do you believe these disenrollments are policy consequences that are the job of Congress to fix not the courts to consider?

Senator Hirono, the dissent that I wrote in Cook County went through the public charge rule and the statute to explain that those who are currently receiving benefits were not affected by the public charge rule. It was a prospective screen. And I agree with-

Actually … Excuse me, Judge Barrett. I read your dissent and I know you went through the [inaudible 00:32:16]. You tried to show the people who would actually be impacted by the rule. But in your dissent, you also acknowledge that there are a lot of people who are not impacted by this rule who will disenroll because of fear that the rule would apply to them.

Yes. What I said was that it was fear-

So, my question to you is whether those kinds of effects, which you foresaw, you even acknowledged it, if you would … if you think is appropriate for the court to consider those effects?

So, Senator Hirono, as I was trying to answer before, yes, I said that there was fear and there was disenrollment but that in fact, the rule did not apply to anyone who is currently eligible for benefits. The question of disenrollment and the effects of the rule would be relevant at the stage of arbitrary and capricious review. I was just analyzing the first step, which was the interpretation of the statute. But I said that I wouldn’t reach the question in that case because it hadn’t been briefed. So, what I said in my dissent was that it would be better to send that back to the district court for briefing on the question of whether the rule and the evidence that the agency had gathered was arbitrary and capricious, including its treatment of the costs for state and local governments, etc.

Judge Barrett, you deem the rule to be reasonable so I take it you stand by your dissent in that case?

I stand by my dissent, but Senator Hirono, there is a difference between reasonable under the Chevron doctrine and arbitrary and capricious under the Administrative Procedure Act. So, just what I’m clarifying is I did not-

But as you noted in your dissent, the APA was not even brought up. So, that was not an issue. So, everyone seems to agree that this rule is having a chilling effect nationwide.

So everyone seems to agree that this rule is having a chilling effect nationwide among families, affecting access to healthcare, nutrition, food, housing, benefits that Congress meant to make available. So I would say that from your response and the response you gave to Senator Feinstein about the distinction you make between policy and law, it seems to me that in this case you did not give much credence to the effect of this rule.

It wasn’t-

Albeit the rule did not apply.

It would have been the question at the arbitrary and capricious stage, because that’s one of the relevant factors. But the laborious study that I did in the public charge case responded to the arguments the parties made and the complex statutes that Congress has passed in this area, including the welfare reform.

Judge Barrett.

Yes.

I’m sorry to … I don’t think he even mentioned arbitrary and capricious standard. So let me move on. Yesterday, Senator Graham asked you about how unlikely it would be to overturn Supreme Court precedent on a range of issues, and you said, quote, “Judges can’t just wake up one day and say, ‘I have an agenda. I like guns. I hate guns. I like abortion. I hate abortion’ and walk in like a royal queen and impose their will on the world. You have to wait for cases and controversies.”

But I don’t think that’s an entirely accurate picture, because certain justices have been using their opinions to signal interest in addressing various issues, particularly those undermining workers’ rights, civil rights, even inviting challenges to a longstanding precedent. In fact, as Senator Whitehouse explained this morning, just two years ago, the Supreme Court overturned a 41-year-old precedent. Talk about reliance on a precedent. This precedent was called Abood, which protected public sector unions, and Justice Alito engaged in a six-year campaign. I just have this chart to show you that he was very persistent in signaling that he wanted to revisit Abood.

So in 2012, Justice Alito first signalled that he wanted conservative anti-union groups to challenge Abood in his decision in Knox v. SEIU. These groups brought case after case to meet the criteria, just as Alito laid out. Although they came close in 2016, his plan was thwarted by Justice Scalia’s death, which left the courts stuck in a four to four decision tie in Frederick. Justice Alito had to wait until Senator Mitch McConnell blocked Merrick Garland’s nomination for nearly a year so that President Trump could appoint Neil Gorsuch. Pretty much the minute Justice Gorsuch got on the court, the court finally overturned Abood in Janice.

Now we’re seeing that same kind of signaling to invite challenges to another precedent. I mentioned this yesterday, Obergefell, which recognized the right of same-sex couples to marry. Last week, the court denied review in over 1,000 cases, but Justice Thomas, with Justice Alito, issued a sharply worded statement about one case that was denied review, Davis v. Ermold, and that case involved a former Kentucky clerk who refused to issue marriage licenses to same-sex couples after Obergefell.

So like Justice Alito in 2012, Justice Thomas, joined by Justice Alito, signaled an eagerness to roll back a Supreme Court precedent that they believed conflicted with their understanding of the Constitution. They criticize Obergefell for, quote, “reading a right to same-sex marriage into the 14th Amendment, even though that right is found nowhere in the text” and called it a problem that only the court can fix.

Judge Barrett, you said, “Judges have to wait for cases and can’t say, ‘I have an agenda.'” But here you have examples of justices who are sending out signals, “Bring these cases to us because we want to take a look at precedent.”

I just want to site, too, one case where I think that you are also sending out a signal, and that is a circuit court case. Well, two circuit court cases, one that has you’ve been asked about, Kanter v. Barr, where you wrote a dissent arguing that certain people with felony convictions should have the right to have a gun, and you went out of your way to raise the issue about their right to vote and raising concerns that you view their right to vote to be more limited than their right to own a gun.

In another example, in Price v. City of Chicago, in that case, you joined a decision that upheld the so-called abortion clinic buffer zone law. As a circuit court judge, you had to apply the law under a clear Supreme Court precedent. But the decision that you joined went even further. It signaled a strong disagreement with that president, the Supreme Court precedent, calling it, quote, “incompatible with the 1st Amendment and imposing serious burdens” and directed the plaintiffs to seek relief in the Supreme Court. You are going to be, if confirmed, on that Supreme Court.

Earlier today, Senator Coons showed you a chart of more than 100 cases where Justice Ginsburg was in the majority and Justice Scalia was in the dissent, and the chart showed the many rights at stake, including longstanding precedent, with your nomination. That includes workers’ rights, civil rights, healthcare, campaign finance limits, and environmental protections. My Republican colleagues are well aware of this, and that’s why they want you to be on the Supreme Court so badly. In 2016, after Justice Scalia died, you described him in a TV interview as the staunchest conservative on the court. Is that correct?

I can imagine that I said that as I’m sitting here. I can’t recall my exact words.

Well, I’m quoting you.

Okay.

So yes, you said that. You also recognized that replacing the staunchest conservative on the court with someone nominated by President Obama could dramatically flip the balance of power in the court. That’s a quote from you, “could dramatically flip the balance of power in the court.” You are now in a position that you described four years ago of dramatically flipping the power of the court. So your nomination would actually be a more dramatic shift. Law professors, such as professor Stephen Vladek, have pointed out that with your confirmation, the court would be transformed into the most conservative court since the 1930s, with a much more aggressive conservative agenda.

In accepting your nomination, you described Justice Scalia as your mentor. That’s been mentioned many times before. It appears that you may be even more to the right of Justice Scalia, whom you described as the staunchest conservative. I think it’s important to look at what kind of impact you would have had on more recent Supreme Court decisions.

When Justice Ginsburg served on the court, the Roberts court issued numerous five to four partisan decisions, but what’s notable are the more recent five to four decisions after Justice Kennedy, who was often in the middle of the ideological spectrum, was replaced by a much more conservative justice. The court shifted rightward as Chief Justice Roberts’ conservative views was now in the middle of the ideological spectrum of the court.

So Judge Barrett, are you familiar with the recent five to four decisions where Chief Justice Roberts joined the four liberal justices to form a majority?

What decisions are you referring to?

Are you familiar?

I don’t know what decisions you’re referring to.

There are a number of them. I would just touch on two, and I’ll describe them. So these five to four cases touched on several issues that highlight what’s at stake with your nomination. These issues include protections for DACA recipients, the integrity of the census, reproductive rights, digital privacy rights, right of criminal defendants, COVID-19 safety measures, protecting agency regulations, covers a wide range of protections from veteran’s benefits to clean air and water.

I’m just going to go to the DACA decision that I mentioned. In June 2020, Justice Ginsburg was part of a five to four majority with Chief Justice Roberts that blocked the Trump administration’s efforts to end the DACA program. Replacing Justice Ginsburg with a conservative like Justice Scalia would have thrown the lives of 800,000 DACA recipients and their families into chaos. The DACA participants would be facing deportation. That includes the over 200,000 DACA recipients who are risking their lives on the front lines of the pandemic to predict the health and safety of us.

Last year, Justice Ginsburg and Chief Justice Roberts issued a five to four decision that blocked the Trump administration’s anti-immigrant policy of adding a citizenship question to the 2020 census, something very near and dear to President Trump. Replacing, in that case, Justice Ginsburg with someone like your mentor, Justice Scalia, would have resulted in excluding many immigrant families from the census. That would not only have decreased their representation in Congress, it would also have decreased their share in the distribution of 1.5 trillion in federal resources.

Yesterday, we saw what the court looks like without Justice Ginsburg on it. It allowed the Trump administration to end the census data collection early, despite the ongoing pandemic, despite the fact that they will not get an accurate census count by ending the data collection early. So of course, that would mean probably fewer federal resources for communities where there is not that accurate count. That could also mean that Trump officials, instead of Census Bureau experts, may use the population numbers to determine representation in the House of Representatives and in state and local governments. We already know that Trump is demanding that those numbers exclude undocumented immigrants, even if the census requires everyone to be counted regardless of immigration status. So President Trump has repeatedly accused Chief Justice Roberts of betraying conservatives in the court’s decisions on healthcare, DACA protections, and other rights. He’s made it clear he has nominated you to do the job he thinks Chief Justice Roberts and Republicans failed to do, strike down the Affordable Care Act and roll back critical rights and protections.

You’ve already been asked about the consequences of the Shelby County decision. It was totally foreseeable that you would have a lot of states passing voter restriction, suppression, basically, laws. Do you believe, Judge Barrett, that voter suppression or discrimination in voting currently exists?

Senator Hirono, we have the Voting Rights Act that offers protection, and Section 2 of the Voting Rights Act, which was not at issue in Shelby County, protects voters from any kind of measures that would discriminate on the basis of race. So that gives protection.

Do you think that the Justice Department is pursuing aggressively those sections of the law? Because we know that over a dozen states passed what I would characterize as voter suppression laws. So that is obviously happening. Now, in that case, Justice Thomas went even further, because the majority in Shelby County left the framework for allowing Congress to come back with formulas that would enable preclearance to occur. But Justice Thomas went further. He said, “Get rid of the entire framework. Congress, you’re totally out of the picture.” So this is a danger we’re facing with your being put on the court.

One more thing. I have just one more question. Do you think that having three justices who have worked on the Republican side, Bush v. Gore, you’re one of those justices, should you be confirmed, creates an appearance of conflict if an election case involving a president who nominated you comes before the court? I’m basically out of time, so I’d like a yes or no answer.

Well, Senator Hirono, I answered that question before and said any question of whether there was an appearance of partiality problem would be one for all justices involved to consider under the recusal statute.

So you think there might be a conflict and therefore you would have to go through that entire process.

Senator, I think anytime someone makes a motion to recuse and, indeed, even one is not made, a judge always has to consider that issue. So, I mean, you’re asking me to make a decision about whether I think myself and two people who are not even yet my colleagues should recuse in that situation. I’m just saying that I-

No, actually, my question was whether it poses an appearance of conflict, and I believe that the fact that you would even bring forth the recusal process says to me that voters might decide that there is an appearance of conflict. Thank you, Mr. Chairman.

Chairman: (01:22:58)
Thank you. Senator Ernst.

Senator Ernst: (01:23:00)
Yes. Thank you, Judge Barrett, very much for being in front of us. Welcome to day three. It’s been quite a day, and because we do have so many members that have been busy talking over you and interrupting, and they said so themselves, “Pardon me for interrupting you,” telling me that their time is more important than hearing your answers, if you would like to take a few moments, if there’s anything that you would like to further explain, I would welcome that at this time.

Thank you, Senator Ernst. I mean, I think the only thing I’d want to clarify is, insofar as Senator Hirono was suggesting I think that the work that some of the justices may have done on Bush v. Gore is reason to recuse, that is certainly not what I meant. What I meant is that in every case, judges have an obligation to consider the issues, and they may conclude no. So what I meant to be saying was just not to take a position. So I just want to make that answer clear.

I appreciate that. Thank you for taking that time. Judge Barrett, obviously, over the past number of weeks since you were nominated and certainly since this hearing began, there’s been a lot of discussion about the legacy of Ruth Bader Ginsburg, who was really a trailblazer. The Democrats seem to claim that you wouldn’t be an adequate replacement for Justice Ginsburg because you do not march in lockstep with her judicial philosophy. The way I see it, you’re both trailblazers, and you’re both accomplished professors. You are both respected and revered and had strong endorsements, both from the left and the right, and you’re both amazing working moms. You both served in private practice, and like you, she was a woman of strong religious faith. You both have a very impressive track record on the judicial bench.

So asking women to march in lockstep with one philosophy is exactly the wrong kind of message we should be sending to women and especially to young women. What I hear so often from the left, many of us on the right do, I would say probably Senator Blackburn hears this. Many others hear this, that because we don’t hold the same views that those on the left do, we shouldn’t be serving in the roles that we are in. That’s what the left is projecting on you, is because you are not lockstep with what they want to see in their nominees that you aren’t worthy of serving on the bench.

I don’t believe that. I don’t believe that, and that shouldn’t be the litmus test for the Supreme Court. Frankly, it shouldn’t be the litmus test for any woman in any job, any woman in any job. Diversity of thought and an ability to pursue her dreams is exactly what the women trailblazers of the past fought for. If the suffragettes hadn’t been willing to go against the men of their time, certainly none of the women sitting on this dais would have the opportunity to question you today. So what would you say to those that claim you are not an adequate replacement for Ruth Bader Ginsburg because you do not march in lockstep with her judicial philosophy?

Well, I think that judicial philosophy is an appropriate and an important topic for this committee to explore at the hearing, and I think each of the senators has a responsibility when a nominee comes before you to ask what the judicial philosophy is. I think disagreeing with the judicial philosophy that I or any other nominee had is perfectly admissible grounds for voting no, because you may have a different vision for what a justice or a judge is to do. So I have no problem with that. I mean, I think that is how the senators on this committee have viewed their role. So on philosophical or jurisprudential grounds, I mean, I think that’s part of or a lot of what this hearing should be about. I think that there’s room on the court, and I don’t think this just in terms of the women, but I think this for all members on the court. There’s room for different approaches to the Constitution, and I think those approaches shouldn’t be broken down into partisan boxes, because judges are not partisan. They do get appointed and confirmed by the political branches, but judges don’t have campaign platforms, and they no longer associate … As I’ve said a number of times through the hearing, judges stay out of politics. So their jurisprudential philosophies are not designed to yield particular results.

So I think there’s room for different jurisprudential philosophies that, by the way, even when they start and approach texts from different ways of thinking about it sometimes yield the same result. It’s not necessarily the case that two justices, one being a pragmatist and one being an originalist, won’t end up at the same place. They just might get there a different way, or even originalists, I mentioned yesterday that there are many who identify themselves as progressive originalists. So originalists could start at the same place, and I suspect that they would disagree, end up in different places, and I’ve given examples of that. So I think there’s room, and it’s good and healthy for different approaches to the Constitution and to have debates about that.

Thank you. I really do appreciate that answer. So as we’ve been sitting through these discussions, I’ve heard a number of my colleagues bring up different descriptive words to describe you. I’d just like to review a few of those right now: respect, intellect, character, jurisprudence, clarity, demeanor, humility, dignity, independent, exceptional. I think that you are exactly what we should embrace, and as I look at future generations of men and women that might want to serve on our Supreme Court, I hope that they would espouse those attributions as well.

While we have this national stage, I would like you, Judge Barrett, to share some grains of wisdom for those future generations. What advice would you offer to those who are just now embarking on their legal career, and how should they define success and find motivation to kind of, quote, “leave their best on the field,” if you will, at the end of each day?

Well, I think I loved the practice of law. Some professors go to the academy because they don’t enjoy practice that much. I actually really, really enjoyed practice. Then when I went to the academy, I really enjoyed that, too. I would say that especially when you’re beginning your legal career, often you’re at an earlier stage in your life, when you may have fewer other obligations or fewer family obligations and maybe more energy so that it’s … I guess I would just say live life to the fullest, seize all of the opportunities you have, and do your best. But at the same time, never let work crowd out all of the other precious things in your life, like friends and family and faith and exercise.

I had a law professor who told first years who were very, very anxious and studying hard in exams to make sure that you gave yourself time to go take a run or go work out. I mean, I think all of those things that make up our lives apart from work can’t be shoved aside. At the same time, however, you should seize opportunities and pursue them, while keeping in mind your whole person.

Yes, the whole person. Thank you. So when we sat down, Judge Barrett, I told you a little bit about my daughter, Libby, and she’s studying pre-law right now. She sent me a text this morning as we were in this room, and she said, “I have to fisk an article on judge Barrett. So we had this discussion of fisking a while back.

I don’t know what that is.

So I had to ask her what it was, and I actually Googled it to make sure I had the right definition. But fisking, the process of shredding a written argument line by line, parsing the meaning, and providing counterpoints. So their instructor provided the class different articles about you, and they have to go through now and fisk the article. She said, “Okay, so here’s the whole text. I have to fisk an article on Judge Barrett, and honestly, what an amazing woman.”

So I just want to share that little bit of encouragement, that while there may be others on this committee that disagree, I would share with you that there are thousands upon thousands of young women out there that see the role that you set, and I went through all of those descriptive words that my fellow members have shared through the course of these hearings. But those thousands and thousands of young women that see you as someone they can aspire to be, and I know that she is in a very diverse group of friends. They are racially different. They are religiously different, that they’re all young warriors, all of these young women. But they are very excited to have you in front of us.

I would say that many of her friends are not Republicans. They would affiliate more with Democrats as well, but they do see you as someone they can aspire to be. So thank you so much for setting such a great example for women of all different thought processes. What words of encouragement would you like to share with the young women like my daughter, Libby?

I think I would say to be confident, to see what she wants, to have a plan. One thing I’ve often told my own daughters is that you shouldn’t let life just happen to you or sweep you along. You should identify what your objectives are and identify the kind of person that you want to be and then make deliberate decisions to make that happen. My dad used to tell us not to make a decision is to make a decision. So I would say make decisions.

Wise.

Be confident, know what you want, and go get it.

That is fantastic. I have four tenets that I live by or pillars of success, and those four pillars are leadership, service, prudent risk, and gratitude. So I would like just to give you a couple of minutes. You’ve already spoken to a few of those. You’ve talked about service and what it means to serve your nation, and you actually went through prudent risk in deciding to subject your family, your friends, yourself, to this process, but deciding it was for the greater good. I’d like to give you just a moment to express some gratitude as well for those that have helped you get where you are today and share maybe how they mentored you along the way.

Sure. Well, I mean, I think as for probably so many people, my parents were the ones who I would have to express the most gratitude for, because they’ve … Well, gosh, they encouraged me at every step of the way. They’ve encouraged me and supported me and loved me and shaped me and given the values that I have. Then as I’ve had my own family and my own children, then they’ve helped me by supporting me with my children and reinforcing what they taught me.

My professors in law school, we heard the other day from former dean O’Hara, who was gracious enough to introduce me on the panel. I had so many wonderful professors when I was in law school. I had so many wonderful colleagues once I joined the faculty. When I was in practice, I had so many lawyers that I learned so much from. Then we’ve talked at great length about Judge Silberman and Justice Scalia, the judges for whom I worked. So I guess they say it takes a village to raise a child, and I think it takes a village to mentor anyone into who they become as an adult. So I’m very grateful for the whole village that I’ve had that’s brought me to this point.

Wonderful. Thank you very much, Judge Barrett.

Thank you. Senator Booker.

Senator Booker: (01:36:57)
Mr. Chairman, thank you very much. Your Honor, hi.

Hi, Senator.

How are you?

I’m good. You?

I’m doing well, doing well. I’m sure that part of that smile is the fact that I’m the second to last Democrat. I just want to jump right in, because I actually found some of your responses to Senator Hirono really compelling around the public charge issue and that you dissented in the case. If I could read it, you wrote at the bottom, “The plaintiff’s objections reflect disagreement with the policy choice, and even the statutory exclusion itself, litigation is not the vehicle for resolving policy disputes, because I think the DHS’s definition is a rational interpretation of the statutory term public charge.” But you were saying to her, which I really found compelling, that you were still leaving the door open for it to be capricious. Was that the word you used?

Yes. So the standard of review under the Administrative Procedure Act would be arbitrary and capricious. So I said at the conclusion of the dissent, because the majority reached both, I said at the conclusion of the dissent that I wasn’t resolving that issue, because it hadn’t been briefed before us. But I just wasn’t expressing an opinion. I thought we needed a fuller record. So I did leave open the possibility that the rule would nonetheless be arbitrary and capricious.

Yeah. As I said to you on our phone conversation, trying to read all of your cases has been a Herculean task, as has probably yours, preparing for this so quickly. So maybe I can just go back to asking just a simple question that I hope you’ll feel comfortable asking. It’s just what I think is an obvious answer again. But do you think it’s wrong to separate children from their parents to deter immigrants from coming to the United States?

Well, Senator Booker, that’s been a matter of policy debate, and, obviously, that’s a matter of hot political debate in which I can’t express a view or be drawn into as a judge.

So I respect that a lot, but I think the underlying question is actually not hotly debated. Just maybe I’ll ask it one more time. Do you think it’s wrong to separate a child from their parent not for the safety of the child or parent, but to send a message? As a human being, do you believe that that’s wrong?

Well, Senator, I think you’re trying to engage me on the administration’s border separation policies, and I can’t express a view on that. So I’m not expressing assent or dissent with the morality of that position. I just can’t be drawn into a debate about the administration’s immigration policies.

Right. Of course, the question does have implications, but a very simple … As I said to you yesterday, that we’re debating things that, to me, are basic questions of human rights, human decency, and human dignity. I’m sorry that we can’t have a simple affirmation of what I think most Americans would agree on. But maybe I can jump back to something we began yesterday. I asked you whether you were familiar with studies conducted by the US Sentencing Commission. Do you remember?

Yes. I said I was generally aware … Are you talking about when we talked about systemic or implicit bias, systemic racism?

Yes, yes.

I’m generally aware that there have been studies done.

Right. So the US Sentencing Commission provides nonbinding federal guidelines to federal judges-

Right.

… which showed that some of the racial disparities in our criminal justice system, they talk about that considerably, and my colleagues and I on both sides of the aisles, we’ve worked on criminal justice reform, discussed a lot of them. Some of those, as I discussed yesterday, were examples that federal prosecutors are more likely to charge black defendants with offenses that carry harsh mandatory minimum sentences. They’re more likely to charge black defendants than similarly situated white defendants, and black defendants were subject to three strikes laws, sentencing enhancements at a significantly higher rate than white defendants, which, on average, actually added ten years to their sentence, a significant surrender or seizing of liberty.

You said you were not familiar with that particular study, as you just reaffirmed, or the facts that they cite in this study showing that interracial bias is present in our system. I think in our discussion, I think it came out that you know that these issues of bias in our criminal justice system are manifested, really, in many different aspects of the system, from police misconduct, unlawful use of force to prosecutor bias, sentencing disparities. These are wide and vast areas that have been shown to have such implicit racial bias evident in them.

This year, clearly, we’ve been grappling as a nation with a lot of these issues, and it is a part of our long standing history. You cannot divorce the role of judges-

Senator Cory Booker: (01:42:03)
Of our longstanding history. You cannot divorce the role of judges in our history over these some 200 years, and how race has been a persistent part of the national narrative grappling with deep issues of bigotry and bias, overt as well as the biases that exist. We know that many of the unjust deaths of unarmed African-Americans at the hands of law enforcement have brought this even more into public concern. And so I just want to ask you and maybe give you more of a chance to discuss. I understand that you weren’t aware of specific studies I cited, which are central to the important work of the U.S. Sentencing Commission, which advises federal judges or provides recommendations to federal judges. So I just want to give you an opportunity today to share what studies, articles, books, law review articles or commentary you have read regarding racial disparities present in our criminal justice system.

Well, Senator, as you know, the sentencing guidelines do give judges guidance on imposing sentences. And so I am familiar with the sentencing guidelines because there’s something when we review sentences that we need to draw on and apply. In addition to the sentencing guidelines, the Sentencing Commission, as you say, does issue studies or sometimes we get things from the federal judicial center that talk about it. It’s not something I’m certainly aware of it. I think it’s kind of an obvious point that there’s no [crosstalk 00:01:34]-

Forgive me for interrupting and I’m especially concerned because Joni Ernst-

No, that’s fine.

Who’s been teaching me about Iowa and I do not want to [inaudible 00:01:41]. But I was actually asking specifically any books you can name that you’ve read on this subject or law review articles, anything that you specifically read outside of the sentencing guidelines?

Well, Senator Booker, I would say that what I have learned about it has mostly been in conversations with people at Notre Dame, as at many other universities. It’s a topic of conversation in classrooms, but it’s not something that I can say, yes, I’ve done research on this and read X, Y and Z.

I respect that. You’ve answered the question. So one of the greatest drivers of disparities I’ve worked with partners of mine on both sides of the aisle has been the so-called war on drugs, which really is a war on black and brown people because of the outrageous disparities. And there’s no difference between blacks and whites for using drugs or even dealing drugs in America, but blacks are multiple times more likely to be arrested for them. It’s why it’s Stanford, not that I’m imputing my school, lots of drug use, very little arrests, but in low-income communities like the one I live in, equal drug use, but much more arrests.

One of the most tragic examples of this, again, partnership on both sides of the aisle was about the crack powder cocaine disparities, which impose such harsh unbalanced penalties for cocaine relative to powder cocaine, that someone caught with a amount of crack cocaine the size of a candy bar would get roughly the same sentence as someone caught with a brief case full of powder cocaine. This is a wildly unjust part. When the sentencing commission wrote an amendment to the address to address some of the disparities and made it retroactive to 2008, you actually wrote a law review article in a well-known legal academic, not a law review article, excuse me, you wrote a blog post in a well-known legal academic that cited this decision. And you questioned whether that was a wise call.

Now, in fairness as I re-read it today, you raise the administrative hurdles in retroactively reducing sentences which would provide relief to actually an estimated 20,000 Americans who had their liberty, one of the most fundamental rights, taken away from them. But never in the blog article did you mention that this was unjust. There was no deference to how serious this is for the 20,000 Americans, 98% of them who are black and brown. You just questioned why are we doing this. Could you tell me why?

Sure. Senator Booker, I think what you’re referring to is a short blog post on the law prof’s blog. And it wasn’t an in-depth exploration of the crack cocaine disparity or anything like that. It was simply pointing out the administrative hurdles because my husband was an AOSA, a federal prosecutor at the time, and that had been table talk at our house, just kind of the complexities of retroactively going back. So it wasn’t a policy statement and it wasn’t a statement to meant to be just, I don’t think it was probably more than a paragraph and it was simply identifying the administrative hurdles because they’re clearly, whenever you apply retroactive reform, there are administrative hurdles going forward.

Well, you’re a law professor who assigns lots of syllabus to just a guy me who played football. This is a long article, a couple of pages worth. And I’m wondering-

The blog post was?

I have it here in font that my old eyes can’t read.

Okay. My old eyes can’t see it from here either. I don’t have a memory of how long it was,

I guess I’m just saying that you’re not citing articles or research that you’ve read on this issue yet you have written here about it. And to me it makes me wonder and want to talk to you a little bit about your preparedness and priorities taking the highest office in the judicial world that deals with such long standing issues of race, and in a way that affects the totality of the lives of Americans in every aspect of their life, from their financial well-being to their rights to vote. And I’d like to go through as quickly as I can in my remaining 10 minutes, a little bit about the vastness of this problem and why I’m very concerned that you haven’t even cited anything that you’ve read that would speak to this, or the only writings I could find on it, don’t even talk to the injustice of it all.

And so you had a conversation with Senator Klobuchar about voting. And I just want to know, have you ever waited five hours to vote?

I have not.

Have you ever waited over an hour, even?

I have not.

Yeah. Well, in Wisconsin, a state in your circuit, we saw the travesty during the primary earlier this year during a pandemic that many polling places were closed and lines were incredibly long. In Milwaukee, a city of more than half a million people located in a county with 70% of that state’s black population, we literally saw out of the city’s 180 polling places, only five were open pushing people into hours and hours long’s wait.

Now comparatively 66 polling places were open in the city of Madison, a predominantly white city, half the size of Milwaukee. And the U.S. Supreme Court made this all worse with a ruling that restricted mail-in voting at the last minute during a pandemic where black Americans are dying at twice the rate of white Americans. And let’s be clear, this is part of a nationwide problem with racial disparities in voting. A recent study found that residents of entirely black neighborhoods wait almost 30% longer in lines to vote. And they were 74% more likely to spend more than that half an hour at the polling place. Now your dissent in Kanter v. Barr, you said something about virtue based restrictions, which really raised my concern, and that virtue based restrictions have applied to civic rights like voting and jury service, not individual rights to possess a gun. This approach to the franchise sort of pulls up a lot of history where people used virtue based restrictions in the past. That’s been very well documented documented in our history, ideas that you can disenfranchise people if they don’t meet certain virtue tests. And many of these tests, I know you’re aware of, but these are like are you worthy enough if you can’t say the whole Declaration of Independence? These are tests that John Lewis used to talk about it. Can you count the bubbles in a bar of soap? You’re familiar with that, I’m sure.

Senator, I want to be very clear and I tried to clear this up yesterday. This concept of virtue, I think especially for people who are watching this, who don’t know about the law, does not mean that I think that people’s voting rights can be taken away because they’re not good people or that I think literacy tests are okay or anything like that. It’s a concept that was present in Heller. Kanter v. Barr was not about voting rights and I very clearly have said voting is an individual and fundamental right that is critical to our democracy-

So poll taxes, you would say unconstitutional.

Senator, voting is a fundamental individual right that is critical to our democracy. The 14th amendment, the point I was making, is that the 14th amendment does expressly contemplate that states might deprive felons of voting rights because it’s in the text.

So you’re jumping to felonies. I just asked you about poll taxes and I’ve tried to point out to you with the picture of just one place or African American community as a whole, waiting so much longer than you and I might have ever waited in lines. I’m trying to draw something here for you. So I just asked about poll taxes. Didn’t get to felony disenfranchisement yet. Poll taxes, unconstitutional, yes?

Okay. I was pointing out with the felony disenfranchisement, the point I was making in Kanter v. Barr. I wasn’t trying to anticipate your questions. I was just saying that that was the context in which I discussed it. I think Section Two of the Voting Rights Act, which prohibits procedures and practices-

Right. Right, I think-

Poll taxes fall.

Yeah, thank you very much. Thank you very much. You’re jumping ahead and I spent so much time on my questioning. So, let’s jump though. Let’s jump. Let’s jump ahead to this. And obviously the case in Florida, that you’re well aware of I imagine, where we had significant felony disenfranchisement. I’ve read a lot about the history of that going back to the post Civil War period, the fall of reconstruction, thousands of blacks being lynched, massacres going on in our country from the Colfax massacre to the Greenwood massacre, and laws being passed systematically in places to try to make it harder for blacks to vote designing felony disenfranchisement laws, and putting those aside of the black codes, easy to disenfranchise lots of African Americans. So this is a lot of the historical origin here.

Now we see this coming to the fact that now we have places like Florida, and by the way, there are levels of disenfranchisement for African-Americans upwards of, I think in America, one in every 17 blacks are unable to vote because of felony disenfranchisement. I can see by your expression, that’s a surprising data point. I hope that you would look at that. And yet in Florida, about 774,000 people have completed their felony sentences, are now being prevented from voting because they still owe fines and fees. These are Americans, disproportionately black, are being subject to a modern day tax.

In other words, if I’m wealthy enough, I can pay that. If I’m African American, disproportionately poor, I can’t do that. One in five black people in Florida couldn’t vote because of felony disenfranchisement. Now this is well documented history. I’ve gone through some of it. But as you are seeking this highest office in the land, I bring this full circle of our conversation because again, another study by the American Bar Association, which I recommend to you, shows that a person with a felony commitment in America is subject to 40,000 collateral consequences.

In other words, we now have in America the war on marijuana. It’s affected, in 2017, there were more possession of marijuana arrests in America than all the violent crime arrests combined, overwhelmingly, and disproportionately African American people. Saw it used at Yale and Stanford, not at Notre Dame, just play them in football. But my point is, is you see that if a black person is not more likely to use marijuana, but they’re more likely to be convicted of a felony for it at some three to four times the rate, I hope you can see that that means that they’re going to be more likely to lose other liberties, other rights. It so deeply affects their lives, their voting life, their ability to raise their children when a parent has been put in a position where now, because of that felony conviction, we’re doing things that two of the last three presidents admitted to doing.

They now can’t vote. They now can’t get jobs. They now can’t get many business licenses. This is such a deeply affecting system that is disproportionately harming one class of citizens based upon race. And so here we are in the midst of a, and I return to the not normalcy of this moment in American history, where you can’t turn on the TV and watch basketball without courageous athletes trying to talk to the heart of America to say, “Please listen, please listen. The system is endangering lives, taking away liberty, taking away your financial well-being, taking you away from your children.”

There are people marched in all 50 States, 18 other countries, because African Americans when they’re jogging, sleeping in their home, are being killed. And we have a nation now where we’re doing a Supreme Court Justice hearing, the last days while an ongoing election to a President that can’t even condemn white supremacy, where he tells white supremacist groups stand by, where they’re menacing and literally recruiting people to do so-called poll watching, which many people have sounded the alarm in African American communities, dredging up memories of the past of people intimidating people at polling places.

People protesting in our country all leading into an election where this issue, and Roe v. Wade, and people’s healthcare, all is going to be on the ballot, but yet we’re sitting here acting like this is normal. And I have great deal of respect for my colleagues, because some of my colleagues courageously have stepped up calling out studies from, and articles and writings, from the Heritage Foundation, from the Cato Foundation, from AEI, who’ve all spoke to with data and facts that the pervasiveness of racial disparities. The America, something’s going on where the New York Times bestseller list, the Amazon best letter list had books stamped from the beginning, The Color of Law, Just Mercy, the New Jim Crow, bestsellers all crowd America as people are seeking to know what the facts are.

And so I hope you understand my heart when I look at a justice who it seems that the fix is in, is going to serve on the Supreme Court, and hasn’t taken steps to understand the pervasiveness, the facts, the truth about cases of race that are going to come before you in a system right now that so many people feel like it’s unjust. That those words written on the building, the Supreme Court, equal justice under law, doesn’t apply to them because they see, as Brian Stevenson says, that we still live in a country where you get better treatment in the justice system if you’re rich and guilty than if you’re poor and innocent.

And so I appreciate the conversation that we’ve had, and I wish we had more time, but there’s a lot of fear, as I’ve talked to you about yesterday, there was a great deal of concern about the way this is being done. And I just am deeply, deeply worried about the implications to the fabric of our nation as I said to you in our phone conversation, with the way this is being handled. And so I’m very grateful with the decorum and candor with what you’ve answered my questions. I hope that you feel like I’ve treated you in the same way.

Yes. Thank you, Senator Booker.

Thank you.

Thank you, Senator. Senator Crapo.

Oh, I’m sorry. My staff is just telling me I should have said this.

Without objection, whatever it is.

You and the justice are both trying to jump ahead.

Whatever it is.

I appreciate you, Mr. Senator, and the work that you and I-

Thank you very much.

Have done. So I would like to ask unanimous consent to enter into the record, the following three letters into the record. A letter from the Leadership Conference on Civil and Human Rights, opposing Justice Barrett’s nomination to the Supreme Court, a letter from 83 young people organizations opposing the nomination of Judge Barrett to sit on the Supreme Court, a letter from LGBTQ advocacy groups opposing any nomination where reasonable doubts exist on her ability to administer fair and impartial justice for the LGBTQ people. Thank you.

Thank you. Without objection. Senator Crapo.

Senator Mike Crapo: (01:59:25)
Thank you, Mr. Chairman. Judge Barrett, good to see you again.

Likewise.

Before I begin my comments and questions, I think there was at least an implication from what was just said that you would not be sensitive to the need for equal justice for all under the law for all peoples in America. Would you like to respond to that at all before I go ahead?

I am fully committed to equal justice under the law for all persons. I am fully committed to enforcing all laws to prohibit racial discrimination. In my private life, I abhor racial discrimination and obviously for both personal reasons and professional reasons, want to ensure that there’s equal justice for all. And you know, all of my children I think have made an escape, but if they watch this one day, I would want all of them to know, and especially Vivian and John Peter, but I unequivocally condemn racism and want to do everything that I can in my own capacity personally and as a judge to end it.

Thank you. I appreciate you making that point. I find it just incredible that a mother of children of different races could be accused of not being sensitive nor willing to protect the rights of all under the constitution.

Before I go on with my questions, once again has happened both two days ago and yesterday and again today, there’s a couple of things I think that need to be set straight in the record. First of all, once again today, it was said that we should not be holding these proceedings because we should be dealing with the pandemic. Well, first of all, the Senate can do more than one thing at one time. Secondly, as I indicated before, we’ve put over a $500 billion package of relief dealing with most every important and significant aspect of our need for COVID response on the floor. It has been filibustered by the other side. The President has made an even larger offer back. That has been flatly rejected. And we have had an announcement recently by the leader of the Senate, Mitch McConnell, that we will vote again next week on the issue to see if there is some way we can get an agreement to move forward. But the argument that we should simply ignore this important nomination because of that holds no water.

Secondly, another of the major points that this entire hearing was started out with on the first day was that people should be scared by these proceedings because they will lose healthcare coverage for their pre-existing conditions. That has been again, run out here today time and time again. And I’m not going to ask you to go through that again, but I’m going to make a couple of comments about that. As I said earlier, in these hearings, even back when we were debating Obamacare, there was no disagreement about covering pre-existing conditions. And in every proposal from our side since that time, coverage for pre-existing conditions has been included. It is not something that there is an effort to or a willingness or a desire to eliminate in terms of protection. And it is not at risk in the Supreme Court case, as you have, I think, very clearly described in your testimony, Judge Barrett.

And finally, with regard to that, if those assurances and those facts don’t make it clear, Senator Tillis has introduced legislation called the Protect Act, which will put into law once again, protection for pre-existing conditions in our healthcare coverage. And every one of my colleagues on the other side of the aisle voted no to stop that from moving forward. It’s there. The bill, the Protect Act, is in the Senate. We can vote on it if we can just get permission to proceed to it from our colleagues. So this notion that pre-existing conditions is somehow at jeopardy is simply rolling out yet again in this campaign cycle. Another one of the arguments that doesn’t hold water.

Now I do want to move to some questions for you, Judge Barrett. And again, after it was extensively discussed yesterday and the day before, you have been attacked on the basis of concerns about your willingness to follow precedent in stare decisis. In fact, one of my colleagues, if I heard it right, said he thought that you may participate in issuing in a whole new era of judicial activism and overruling precedent of the courts, and basically pushing an agenda that you won’t admit to having. I know you answered this a lot yesterday. We’re going to go through it again.

One of the things that you were asked about extensively was this, I think, 2013 law review article where a sentence was plucked out of it that you feel was not correctly reflective of what you said and how you feel. Would you like to take an opportunity to clarify that for us?

Sure. That article was responding. So, as I’ve said a couple of times, the Supreme Court gives different precedential strength to constitutional cases than to statutory cases. And that article was responding to arguments that either stare decisis should be eliminated altogether or that it should be absolute. And I was taking the Supreme Court doctrine as it exists where constitutional cases are not absolutely insulated from overruling, which is the position that every Supreme Court Justice of whom I’m aware has had. Sometimes you do have to overrule cases, otherwise we don’t have Brown v. The Board of Education. And I was just identifying some of the virtues of that presumption. So I was defending, in that article, the current court doctrine of stare decisis. And I very clearly said in that article that you can’t just impose a new vision with votes, that you have to take reliance interests, and that always lack of certainty about how the stare decisis calculus runs, counsels in favor of keeping the status quo.

Well, thank you. Now, I found it amazing that you would be accused of being a judicial activist because you are a textualist and an originalist, as I understand your testimony and your record and your writings. And I’d like to just look at a few of your writings. You have described stare decisis as a fixture of the federal judicial system. You have stated that you recognize that the Supreme Court follows a presumption that precedent will stand and that the court does not depart from that presumption unless the President is not only erroneous, but unworkable. Correct?

And not only erroneous and unworkable, but also has to take into account reliance interests and those other factors as well.

Yep. That was actually next on my list.

Okay, sorry. I thought you meant just unworkable is enough.

You anticipated that. And you have spent a lot of time, and I won’t ask you to do it again, going through those requirements that are in place before a judge or a justice would seek to become an activist in the sense of overturning existing precedent of the Court. And you’ve also said that partisan politics are not a good reason for overturning precedent. I assume that goes without saying, correct? Those were some of your writings and you’ve written much more, but let’s look at some of the case [inaudible 02:07:30]. You’ve got a pretty significant record now in the Seventh Circuit. You have, as I see it, a pretty solid record there of following precedent. The first issue is in 2019, you had a discussion with Judge Amul Thapar.

Oh, yes. Judge Amul Thapar.

Okay. And could you please explain that conversation. It related, I think, to a case where you were clarifying that even though you disagreed in a previous circumstance relating to it, that you would follow precedent, or do you recall that conversation?

I mean, I recall the conversation. We did it for a professor in the political science department. It was to primarily an undergrad audience and we answered questions back and forth on a range of topics. I don’t remember the particular.

No, this was not a case. It was a scenario you were asked about in that conversation.

Oh, okay.

And you made the clarification that in that scenario you would decide a case or a case consistent with the way the majority did and not with your own view if the precedent required it.

Oh, So if I had dissented the first time around and lost, and then when back around.

That’s apparently what that was all about. So let’s talk about a couple of cases. In Price v. The City of Chicago, you joined an affirming opinion over a district court’s dismissal of a suit by pro-life activists. Do you recall that case?

I do.

What role did precedent play there?

Precedent controlled a case called Hill v. Colorado. The bubble zone ordinance at issue in Price was nearly identical to the one that the court had upheld in Hill.

And even though in this case, you ruled against a pro-life interest in following precedent, correct?

Correct.

In Lett v. The City of Chicago, you applied the Supreme Court’s test for evaluating restrictions on a public employee speech. Do you recall that case?

Yes.

And again, you followed the precedent. In Chazen vs. Marske, M-A-R-S-K-E, the Seventh Circuit held in light of the United States v. Mathis, and a subsequent Seventh Circuit decision that a petitioner’s prior convictions on a burglary no longer qualified as predicate offenses under a certain criminal act. Again, following precedent of the Supreme Court and the Seventh Circuit. I’m just picking out a few. You’ve got a very full record of these. In my view, I only found one case where you actually did not follow Seventh Circuit precedent. And that was the case of Groves v. The United States. And I don’t know if you recall that case-

I do.

But why didn’t you follow a Seventh Circuit precedent then?

So in that case, there was precedent that was old on point. And the Supreme Court had issued a series of subsequent decisions, which called our prior precedent into doubt. And so the Seventh Circuit has a rule called Circuit Rule 40(e). And when we conclude as a full court, you circulate an opinion to the full court to say, I think our precedent should be overruled, in this case because it had fallen out of step with later developments in the Supreme Court, I circulated that precedent, or the opinion pursuant to 40(e) and the full court agreed. We overruled precedent.

So the way I would summarize that is that the court with your support overruled the Seventh Circuit precedent because a Supreme Court precedent overruled that. Pretty closely?

Not directly overruled it, but the Supreme Court precedent undercut it.

Was inconsistent with it. So you were following Supreme Court precedent to take that action.

Yes.

All right. Let’s just look at your cases and I’m going to go through some statistics here. You know, statistics sometimes get outdated or what have you. So if these are not accurate in your understanding, please tell me. But what I have before me tells me that you’ve authored 79 majority opinions since arriving at the Seventh Circuit, is that a correct number?

I don’t know. So I will take your word for it. Yeah.

That’s what my information says.

Okay.

And it says that you’ve participated in the disposition of 922 appeals. Does that sound approximately accurate?

I think I have the numbers that I have looked at recently suggested that I’ve participated in 600 panels that were appellate, but close to a thousand matters, which would include things like stay, certificates of appeals, stay applications, et cetera.

All right. And my understanding is, and again, these statistics might vary a little bit because the numbers are a little different than you say, but I think this is pretty accurate, that your majority opinions have been unanimous 95% of the time. In other words, almost always when you join a majority, it’s a unanimous conclusion of the panel. Was that correct?

That’s my understanding. I’ve seen that statistic.

Well, the statistics I see say that it’s 95% of the time that it’s unanimous for the decisions of the panel. According to CRS, Congressional Research Service, in all the cases you heard resulting in a reported opinion, you’ve only dissented 1.84% of the time. That ranks you sixth among the 11 active judges of the Seventh Circuit, which is right about in the middle. This report also says that your reported majority opinions drew dissents 6.41% of the time, which ranks you sixth among the 11 active judges, right about in the middle.

And it says that the reported majority opinions drew separate writings or concurrences and or dissents 7.69% of the time. That ranks you eighth among the 11 active judges of the Seventh Circuit, which means your opinions were some of the least likely to draw a dissent or a concurrence.

The point of all these statistics is this is not the record of someone who is an activist in overturning precedent. This is the record of someone who follows precedent. And I just want to thank you for being that kind of a judge, because that’s one of the reasons I’m so glad to support you as we move forward.

Now, again, unfortunately today, once again, and I thought we had this resolved yesterday, you’ve been challenged on what you knew about the President’s positions on various issues and whether that influenced your positions. In fact, I think it was even implied that a law review article you wrote that was probably written before the President was even President was something that you were influenced in writing because you knew what the President thought. In any event, we’re going to have to go back again and ask you these questions about, you’ve already said yesterday that the President didn’t talk to you. His staff didn’t talk to you. No one talked to you about Roe v. Wade, Obergefell, or California v. Texas, and you made no commitments on those things.

I made no commitments on any of those cases or on any other case.

That was my next question, because today it’s been implied that you’ve basically just been following the President’s statements, his tweets, even things that he may have felt or believed before he was President, and trying to make your decisions consistent with that. So once again, has the President or his team or anyone talked to you about any case or received a commitment from you about how you would rule on any case?

No, Senator Crapo.

All right. I hope that we can once again put that one to rest. And could you also, once again, restate, is anybody above the law in the United States?

No one is above the law in the United States.

All right. Thank you very much. I told you yesterday before I quit that I was going to ask you a few softballs.

Sometimes softballs turn out not to be a softball, but go ahead.

Well, I think this will. I just want to ask you, I’m going to go-

Speaker 3: (02:16:03)
Well, I think this will. I just want to ask you, I’m going to go. These are some of my hard balls. I’m going to leave those because I’ve only got three minutes left. I just want to talk to you for a minute about academia. What led you to your decision to move out of practice into academia?

Well, when I was in law school, I thought I might like to teach someday because I really liked teaching. I considered being a teacher, I mean, being a secondary school teacher was actually one of the things I thought about too in college. As I said in my speech at the announcement of my nomination, that my mom was a teacher and my dad was a lawyer. And so combined, that might explain how I wound up being a law professor.

So I loved the idea of teaching students. I liked the idea of communicating with clarity, complicated doctrines to them to help them. I have very much enjoyed teaching the 2000 students that I’ve taught and mentoring them as young adults just embarking on their careers. And in many cases, for those who have not had much time between undergrad and law school, even kind of launching their lives, it’s been a really rewarding experience.

Speaker 3: (02:17:17)
Well, you’ve obviously been very influential in that because so many of your students and your colleagues speak so highly of you. You actually also anticipated two of my other questions about it. So I only have one more to ask. And that is what was your favorite class to teach?

Oh, it’s hard to pick a favorite. It’s like asking what’s your favorite child? Who’s your favorite child? I really enjoyed teaching so many classes. I mean, constitutional law in federal courts overlapped directly with the things I was writing about. I taught evidence mostly just because they needed somebody to do it. And what’s funny about that is, I didn’t write scholarship about evidence. It wasn’t part of my scholarly interest and I was doing it as service. It’s called a service class just because you need someone, everyone wants to take it. It turned out to be really fun to teach, just because it was fun to be able to engage students in interactive exercises. And I could use movie clips to do it and it turned out to be a very fun class to teach, even though it didn’t overlap with the things I was writing about.

Speaker 3: (02:18:20)
Well, thank you very much, Judge Barrett. And it is an honor for me to be able to support you for this nomination.

Thank you Senator.

Thank you. Senator Harris, are you…

Senator Harris: (02:18:31)
I’m here. Can you see me? Can you hear me?

Yes ma’am.

Okay.

The floor is yours.

Thank you, Mr. Chairman. Judge Barrett, earlier today you described the Voting Rights Act as “A triumph of the civil rights movement.” But as you know, the Voting Rights Act was not an inevitable triumph. So I think it’s important for us to acknowledge some of its history. This year, our nation has mourned the loss of a great American hero, Congressman John Lewis. He was one of our country’s greatest leaders because he inspired us to fight for a more perfect union.

Every year, John Lewis would invite a bunch of us, members of Congress, faith leaders, others, to join him in Selma, Alabama for a walk across the Edmund Pettus Bridge. And it was there that he would remind everyone of America’s history and the history of the fact that for generations, black Americans were denied their constitutional right to vote. He also reminded us of the brutality that so many Americans faced when fighting for the voting rights of black people and all people.

And history reminds us that some states, as a condition of voting required black Americans to answer impossible questions, like take a look at that jar of jelly beans and if you’re going to vote, you need to tell us how many jelly beans are in the jar. There were questions asked of folks in order for them to vote, they would have to tell the official how many bubbles are in a bar of soap. Impossible questions, obviously.

Some states required black people who had been systemically and systematically denied access to equal educational opportunities to answer questions like how often is the federal census taken, or when is inauguration day? And when one of these malicious questions was asked, they were challenged, as you can imagine, and many were struck down. But when that happened, those states and municipalities would just put up new restrictions and new obstacles for folks to vote. In other cases, black Americans were beaten when they tried to vote or register to vote, including Congressman Lewis and others who memorably shed blood on the Edmund Pettus Bridge. That’s why after so much pressure and the marching and the peaceful protest from civil rights activists that in 1965 Congress finally passed the Voting Rights Act to end discriminatory voting practices.

The Voting Rights Act, as you know, require states and counties who had a history, this is very important, who had a history of denying black Americans and other minorities the right to vote to get approval from the federal government before they changed the voting laws. And for almost 50 years, the Voting Rights Act did what Congress intended. It allowed the federal government to monitor and guard against racial discrimination in states with the long history of voter suppression. But as we all know, in 2013 in Shelby v. Holder, a County and Alabama sued to strike down section five of the Voting Rights Act that required Alabama to seek approval from the federal government before a state could change its voting laws. And of course, section five required that of a number of states that had a documented history of voter suppression.

Now Judge Barrett, I know many of my colleagues have asked you about this case, but I think it’s important we revisit it. By a five-four vote, the court gutted the Voting Rights Act and ended the requirement that states and localities with a history of discrimination get federal approval before changing their voting laws. What the majority of the Supreme Court justices fail to understand is that the success in combating voter suppression directly was a function of our ability to enforce section five of the Voting Rights Act.

So the success was due to the brilliance of section five of the Voting Rights Act, which gave us enforcement capabilities and monitoring capabilities. As has been mentioned just two months after the court gutted the Voting Rights Act, North Carolina passed laws that made it so much more difficult for black Americans to vote that a federal court of appeals mentioned that it “targeted African-Americans with almost surgical precision.”

Texas also has a long history of racial discrimination in voting and was therefore once also covered by the Voting Rights Act. But after section five was gutted in Shelby, Texas quickly returned to some of its discriminatory voting practices. Of the more than 1600 polling places closed after the court’s decision, at least 750 were in Texas. Texas also restricted interpretation assistance for English limited voters. And this year, the governor of Texas issued an order that limited the number of drop boxes for completed mail in ballots to just one per County. Before the order, Harris County, Texas, which includes Houston, and had 11 ballot drop off locations and accounting for over 4 million residents and a County that covers about 2000 square miles. Many people would say that it is just common sense that going from 11 drop boxes to what it did, which is to reduce it to one single drop box, has made it more difficult for people to vote.

The Supreme Court has long recognized that our right to vote is fundamental because it preserves and protects all of the rights. No right is more precious in our democracy. Any nominee to the Supreme Court must understand the effect and affect of ongoing efforts to discriminate against black Americans, Latino Americans, Native Americans, students, and other communities of color. Since the Supreme Court’s decision in Shelby, at least 23 states have passed restrictive voting laws and have attempted to also close polling places, stop early voting and take people’s names off the voter rolls that should not have been removed.

So Judge Barrett, in Shelby County, Chief Justice Roberts wrote, “Voting discrimination still exists. No one doubts that.” And my question to you is, do you agree with Justice Roberts’ statement?

Senator Harris, I want to just make sure that I understand that my understanding of what remains of the Voting Rights Act, what happened in Shelby County is consistent with what you’re describing. The pre-clearance requirement, as I understand, Shelby County remains in place and what the Supreme Court held unconstitutional was the coverage formula. So some states, which in 1965 had a history of discrimination had to get pre-clearance whenever they changed anything having to do with their voting procedures and other states didn’t. And I think Shelby County said that Congress can still pass a new coverage formula now articulating the criteria for jurisdictions that are discriminating and requiring pre-clearance. [crosstalk 02:26:23]

Judge Barrett, my question, however, is do you agree with Chief Justice Roberts who said, “Voting discrimination still exists. No one doubts that.” Do you agree with that statement?

Senator Harris, I will not comment on what any justice said. An opinion, whether an opinion is right or wrong or endorse that proposition.

Well, I’m asking you… So do you call it a proposition or a fact? Are you saying you do not agree with a fact?

Senator, I’m not going to make a comment. I’m not going to say that I endorse either the majority or the dissent in the case of Shelby County.

Well, I just want to understand. Are you saying that you refuse to dispute a known fact or that you refuse to agree with a known fact?

Senator, I’m not exactly sure what you’re getting at with asking me to endorse the fact or whether any particular practice constitutes voter discrimination. I’m very happy to say that I think racial discrimination still exists in the United States. And I think we’ve seen evidence of that this summer, but as to engaging- [crosstalk 02:27:35]

Do you think that voting discrimination exists based on rights in America, in any form?

Senator Harris, there have been cases. We’ve talked in this hearing about the Wisconsin case that went up to the court involving voting. I think any thing, any opinion that I would express, and I don’t mean to signal that I disagree with this statement either. What I mean to say is I’m not going to express an opinion because these are very charged issues. They have been litigated in the courts and so I will not engage on that question.

During his confirmation hearing in 2005, Chief Justice Roberts was asked about the constitutionality of section two, which I think you were referring to earlier, of the Voting Rights Act. He testified, “I have no basis for reviewing section two as constitutionally suspect, and I don’t.” Judge Barrett, do you agree that section two of the Voting Rights Act is constitutional?

I think that Chief Justice Roberts’ statement, I have no basis for viewing it as constitutionally suspect, would be the same as mine. I’m not aware of any constitutional law existing that would create a question about it.

Thank you. As Senator Verona mentioned yesterday, in a 2018 case before the Supreme Court, a group of workers were denied overtime pay and joined together to file a lawsuit against their employer. The corporation argued that workers didn’t have a right to go to court as a group and could only raise disputes in arbitration individually. Unlike a court proceeding, arbitration is private. The process is hidden from the public and generally cannot be reviewed for fairness by a court. And in many cases, people are forced to agree to arbitration if they want to get the job.

In 2018, because of a forced arbitration clause, the workers could not go to a court to fight for overtime, and instead were forced to fight for overtime pay behind closed doors in a private arbitration. Justice Ginsburg, in dissent, noted that the workers faced “A Hobson’s choice, accept arbitration on their employers terms or give up their jobs.” She went on to explain that, “Employees must have the capacity to act collectively in order to match their employers clout in setting terms and conditions of employment.” She urged the court to consider the “extreme imbalance” of power in our nation’s workplaces and avoid further undermining Congress’ passage of labor laws to protect workers and place them on equal footing.

Do you recognize Justice Ginsburg’s point that there is “extreme imbalance” of power between large corporations and individual workers.

Senator Harris, I’m going to give you the same answer that I gave you with respect to the sentence that you quoted me from Chief Justice Roberts’ opinion in Shelby County, that I’m not going to engage in critiquing or embracing portions of opinions, especially opinions that have been recently decided and are contentious from the court.

You’ve been on the bench a short time, but I’m going to just point out that I do believe, and commentators have noted, a pattern that you’ve had of ruling against workers and in favor of corporations. For example, in [Burlocka 02:31:05] v. Contact Transportation Services, you ruled against long haul truckers seeking overtime pay for additional work. In Wallace v. Grubhub Holdings, you ruled against delivery drivers seeking overtime pay, forcing them out of court and into private arbitration. In Harris v. YRC Worldwide, you ruled against four black truck drivers who alleged their employer assigned them less desirable routes when compared to their colleagues. And Smith v. Illinois Department of Transportation, you ruled against a black worker who was called a racial slur by his supervisor. And in fact, if you go on, according to an independent analysis of your decisions, Judge, it appears you have sided with business interests over workers and consumers in about 85% of your business related cases.

Moving on, climate change, as many have mentioned, is an existential threat and its affects are all around us. In California, we’ve had five of the six largest wildfires in the state’s history. 31 people have been killed by wildfires in California since August alone, including at least two firefighters and a helicopter pilot. Across the state, over 9,000 homes and structures have been burned and Californians have been forced to the breathe dangerous smoke. All of this, obviously during a pandemic, which attacks the respiratory system.

But rather than work to combat climate change, the Trump administration has rolled back environmental protections and removed the term climate change from government agency websites, including the EPA. In 2007 in Massachusetts versus EPA, the Supreme Court decided by a five to four ruling that states could sue the EPA for its failure to combat climate change during the Bush administration. Justice Ginsburg was the crucial fifth vote in that case. Following that ruling, the EPA responded by unequivocally finding that climate change and its impacts are a danger to the public health and welfare.

Justice Barrett, yesterday you said that “You have read things about climate change, but you would not say you have firm views on it.” In response to Senator Blumenthal today, you said, You are not competent to opine on what causes global warming” and that you “don’t think your views on global warming or climate change are relevant to the work you do as a judge.”

I certainly do believe your views are relevant. And I’m very concerned about your statements, since the Massachusetts v. EPA case, scientific consensus has grown even more and stronger that climate change is real and it is caused by man made greenhouse gas pollution, and it poses significant threats to human life. If a case that comes before you would require you to consider scientific evidence, my question is will you defer to scientists and those with expertise in the relevant issues before rendering a judgment?

If a case comes before me involving environmental regulation, I will certainly apply all applicable law deferring when the law requires me to. And as I’m sure you know, Senator Harris, the Administrative Procedure Act does require courts to defer to agency fact finding and to agency regulations when they’re supported by substantial evidence. [crosstalk 02:34:36]

Yes.

So, yes, I would apply that law and defer when the law requires me to defer.

And do you accept that COVID-19 is infectious?

I think, yes. I do accept that COVID-19 is infectious. That’ something of which I feel like we could say you take judicial notice of. It’s an obvious fact, yes.

Do you accept that smoking causes cancer?

I’m not sure exactly where you’re going with this, but the notice that smoking causes-

[crosstalk 02:35:07] Question is what it is. You can answer it if you believe it. Yes or no.

Senator Harris, yes. Every package of cigarettes warms that smoking causes cancer.

And do you believe that climate change is happening and it’s threatening the air we breathe and the water we drink?

Senator again, I was wondering where you were going with that. You have asked me a series of questions that are completely uncontroversial, like whether COVID-19 is infectious, whether smoking causes cancer, and then trying to analogize that to eliciting an opinion from me that is on a very contentious matter of public debate. And I will not do that. It will not express a view on a matter of public policy, especially one that is politically controversial because that’s inconsistent with the judicial role, as I have explained.

Thank you. Thank you, Judge Barrett. And you’ve made your point clear that you believe that’s a debatable point. Mr. Chairman, these proceedings, I believe, lack legitimacy in the eyes of the people of our country. Americans are right now suffering from a deadly pandemic and we are also suffering a historic economic crisis. The Senate should be working day and night to provide economic relief to families and not rushing a Supreme Court confirmation.

We are also in the middle of an election. More than 12 million Americans have already voted. The American people want whomever wins this election to fill this seat. My Republican colleagues know that, I believe. This hearing has done nothing to alleviate the concerns raised about why this nominee was chosen and why this is being rushed when the American people deserve to be heard. So again, I would say, let us not pretend that we don’t know what consequences rushing through this confirmation will have on the American people.

There are countless issues at stake. And to be candid, people are very, very scared. They are scared that allowing President Trump to jam this confirmation through would roll back rights for generations, scared about what it means to the future of voting rights, about what it means for civil rights, for workers rights, for consumer rights, for climate change and the right to a safe and legal abortion, not to mention access to healthcare regardless of income or pre-existing conditions.

They are also deeply concerned about what this means for our nation’s continued pursuit of the timeless principle, equal justice under law. And I share those concerns. Sadly, my Senate Republican colleagues are doing, I believe, great harm with this illegitimate process. And if they are successful, it has the potential to do great damage. And I believe that damage is to the people of our country and to the United States Supreme Court. Thank you, Mr. Chairman.

Thank you, Senator Harris. Senator Kennedy.

Senator Kennedy: (02:38:10)
Thank you, Mr. Chairman. Judge, let’s try to answer some of Senator Harris’s accusations. Are you a racist?

I am not a racist, Senator Kennedy.

You’re sure?

I’m positive.

Do you support, in all cases, corporations over working people?

I do not. And I think if you look at my record, you will see cases in which I have decided in favor of plaintiffs, not corporations.

Are you against clean air, bright water and environmental justice?

I am not against any of those things. Those are policies that the Congress has pursued in many statutes and I think we all reap the benefits of when those statutes work.

Do you support science?

I do. And I help my children with their homework when they’re trying to learn it.

You’re sure of that?

I am sure I believe in science and I support science.

Do support children and prosperity?

I support children. Seven of my own and then support others. Obviously, I think children are our future. Support children and yes, I support prosperity.

Do you hate little warm puppies?

I do not hate little warm puppies.

Okay. I just want to get all that clear. See, we did that in about two minutes.

I think that my daughter Juliette, who’s 10, would want me to put in a plug right now to say I do not hate chinchillas because we don’t have a puppy in the Barrett house, but we do have a very fluffy Chinchilla. And so I don’t hate chinchillas either.

Duly noted. Look, Senator Harris is my friend and I get it. She’s running for Vice President, but I want to address these voting rights allegation. Senator Harris has implied that some states are pristine and other states aren’t, in terms of discriminating against people on the basis of gender or race or ethnicity. We disagree. She thinks America is systemically racist. I don’t. I think our history is of the best evidence of that. I don’t think we’re a racist country. I think we’re a country that has some racists in it, but I’m very proud of the fact that our country has gone from in 150 years, which in the grand scheme of life, death, and the resurrection is the blink of an eye. We’ve gone from institutionalized slavery to an African-American President. We’ve passed, I’ll miss some of these dates, but we’ve passed civil rights laws in, I think 1869, 1871, 1957, 1961, 1965, 1990, 1991. I’m pretty proud of that.

But let me get back to my point. My good friend, Senator Harris, and she is my friend. I have an enormous amount of respect for Kamala. She suggested that some states are wicked and other states are pristine. And I would gently remind her that California, a state I love. I mean, I love visiting California. You got to keep moving because they’ll tax you if you stand still, but I love California. But California has a deep history of discrimination against Asian-Americans. California has a deep history of discrimination against Hispanics. And I’m not saying this is true, but there have been serious allegations made against Senator Harris that as Attorney General of the wonderful state of California, that she participated in racial disparities and prosecution.

Now let me jump subjects again. We’ve talked about precedent and stare decisis and why it’s important. We need to have stability. People need to be able to rely on them all, but you’re not suggesting that the United States Supreme Court never has, nor should it ever, reverse precedent if they think they got it wrong, are you?

No, the Supreme Court has always acknowledged that there are circumstances in which it must be able to reverse precedent.

And you mentioned reliance interests. How many Americans have relied on a particular decision by the United States Supreme Court as a factor in deciding whether to overturn that precedent?

Yes.

Reliance interests are not dispositive, are they?

Reliance interests are not dispositive. For example, in Brown versus the Board of Education. I mean, clearly the south had an entire system of segregated schooling built up.

Yeah.

And so they had relied on Plessy versus Ferguson, but reliance interests were not dispositive there because you do- [crosstalk 02:44:31]

There were a lot of reliance interests on Plessy v. Ferguson, weren’t there?

There were. So I think Brown illustrates that reliance interests are not dispositive. You have to look at all the factors in the stare decisis test.

Okay. Yesterday, another friend, Senator Booker, [inaudible 02:44:53] scholar, hell of a tight end, too. Stanford. He asked you if you, I wrote it down, empathize with people struggling to pay for healthcare. And of course you appropriately said, “Yes.” I mean, we all do. Under our Madisonian system of separation of powers and checks and balances, which branch of government is supposed to address the struggle that many Americans have to afford healthcare, Congress or the United States Supreme Court?

Congress, Senator Kennedy.

Let’s talk just a second about state constitutions. I know you know this, but we forget sometimes that state constitutions preceded our federal constitution. Am I right?

Mm-hmm (affirmative).

And in fact, there are parts of our federal constitution that were copied from state constitutions. Having said that, there are a lot of provisions of [inaudible 00:30:04]. For example, we know we have a fourth amendment on the federal constitution. Many states have their own version of the fourth amendment.

Yes.

What happens when a state Supreme Court construes its fourth amendment differently than the United States Supreme Court construes the federal fourth amendment?

So the state is free to construe its fourth amendment differently as a matter of state law. But of course the federal constitution also applies to the states through the supremacy clause, so a state isn’t free to violate the fourth amendment. But one thing states often do, which I’m sure you know because of your interest in state constitutions, and we talked about the Louisiana constitution yesterday, is that many states interpret their versions of the fourth amendment or other provisions to be even more protective of rights than is the United States Constitution.

So the federal constitution sets a floor.

But not a ceiling.

So if Louisiana wants to construe its fourth amendment as not having any exceptions to the warrant requirement, we could do that.

States are free. They’re free to fashion their policies as they want within the limits of the federal constitution. And so the contours of the federal fourth amendment would not themselves prohibit Louisiana from doing that.

Yeah, why does that make sense to you?

Well that’s federalism. So my friend, Judge Jeff Sutton on the sixth circuit, has written a book called 51 Imperfect Solutions. And his point is that we have all these laboratories of democracy, as they’re called, the states, and it’s federalism. Different states have different preferences. Their electorates can make different decisions in Louisiana than in Indiana than in California. And so if some states want to have greater protections, and many do, we allow those differences to flourish within the limits of the common denominator that we have, which is the United States Constitution.

And that’s just respect for the states.

That is.

Okay. The federal constitution has a state action requirement. Am I right?

It does.

Okay. Would a state be free to not have a state action requirement?

I am not aware of any principle that would prevent a state from a statute or a constitutional provision. I mean, states can be the master of their own constitutions, right?

And what do I mean when I’m talking about state actions?

State action requirement, so the only constitutional provision, I think, in our constitution that applies directly to individuals is the 13th amendment, which prohibits slavery. The 14th amendment, which is the context in which the state action requirement has been explored in Supreme Court case law in the civil rights cases, means that the equal protection guarantee or even all the Bill of Rights that are incorporated through it, like the first amendment, only apply to the government.

So when I’m teaching this to my con law students, what I tell them is that I can tell my kids at the dinner table, the first amendment doesn’t apply here because they’ll often say, “Hey, what about my freedom of speech?” And I’ll say, “You don’t have any, because in my house, it is the law. Obey me.” So, but public universities are different than private universities in that regard because the first amendment applies to government run institutions, but not to private universities.

Yeah. I don’t know what the law is right now, but I think there was a case, maybe it’s been overruled, but the California Supreme Court, based on its constitutional history, has ruled that the first amendment in the-

[inaudible 02:50:03]. The first amendment in the California constitution or the first amendment [inaudible 02:50:07] has no state action requirement. It doesn’t just protect you against government, it protects you against everybody. It’s just-

I didn’t know that.

Yeah. Some interesting litigation. I read somewhere that you are an admirer of Kate Chopin.

Oh, yeah.

Tell us who she was and why you admire her?

Well, when I was in college, back in my English major days-

She was a Louisiana writer.

That is, that’s right. She wrote a book focused on Louisiana and a woman who comes to Louisiana from… Now I can’t remember what part of the South she was from. And talked about her becoming accustomed to New Orleans and its particular culture. I very much appreciated that, especially as a New Orleanean. I thought it was an insightful look into what the history of New Orleans is like. And my family, my great, great grandparents, came to New Orleans from France. And my family has been in New Orleans for generations. And so, its history is important to me.

Ms. Chopin had a very feminist point of view too, did she not?

She did, so the awakening is the-

So before her time, yeah.

Mm-hmm (affirmative), she did.

Two more. Tell me what the legal authority is, if you know, for a universal injunction. We got about 600 federal judges, federal district court judges. I could be off by a few. And they not only have limited jurisdiction, but they have limited venue, if you will. They hear cases in a certain geographical area. How can one federal district court judge, in a limited venue, and join a congressional statute or a presidential executive order, for the entire United States, continental and otherwise?

Well, that is a disputed issue of law that’s in litigation. And it’s been on the court’s docket, the authority of district courts to issue nationwide injunctions. So that would take me down the path of opining on a case that could wind up in litigation front of me.

Okay. I got one last question.

Hope it’s an easy one.

It is, it’s a sincere question. I’m generally curious, who does laundry in your house?

We increasingly have been trying to get our children to take responsibility for their own, but those efforts are not always successful. So we run a lot of loads of laundry.

Well, you’re very impressive, judge.

Thank you, Senator

I yield back, Mr. Chairman.

Mr. Graham: (02:53:35)
Thank you very much, senator Kennedy. Senator Blackburn.

Senator Blackburn: (02:53:39)
Thank you Mr. Chairman, and thank you for your endurance today. We appreciate it. I have a couple of things for the record, a letter in support of Judge Barrett, from the Republican National Lawyers Association. And then also the op-ed that was in the Washington Post, September 25th, it’s by John Garvey. It’s, “I taught and worked with Amy Coney Barrett. Here’s what people get wrong about her faith.” He is president of the Catholic University of America and it is in support of her nomination and confirmation.

Mr. Graham: (02:54:24)
Without objection, while I have it on my mind, thank you for reminding me. I have a letter from Reverend Franklin Graham, supporting your nomination. And Jack Goldsmith, a professor a law from Harvard. I’ll introduce those two, thank you.

Speaker 4: (02:54:38)
Mr. Chairman?

Mr. Graham: (02:54:39)
Yes, sir.

Speaker 4: (02:54:42)
I ask to include in record, letters in opposition to the nomination from 50 organizations on immigration, a Better Balance, and 88 other organizations, support rights of working families. 320 law professors specializing in health law, disability law, and constitutional law. And the Alliance for Justice Lawyers for Good Government over 6,200 attorneys.

Without objection, Senator Blackburn.

Thank you, Mr. Chairman. Just a couple of things, again, tying up some loose ends, before we let you get on your way. Senator Harris mentioned, as did others, that they would like to see us working on COVID relief. Again, I want to remind my colleagues, they had the opportunity to vote on this a couple of weeks back. And if Senator Harris chooses to come in next week, she’s going to have the opportunity to vote on COVID relief, once again. She mentioned the California fires. And in relation to her comments to you about climate change, I would just remind my friend, Senator Harris, that it is pointed out regularly that these fires occur every year. Some years more are more difficult than others. And we just grieve the loss of property and life and livelihood for Californians. But we also note that California state officials have not been successful in getting their forest management plans under control. So we would note those things.

Judge Barrett. I think it is no secret that the Democrats are trying to drum up a lot of hysteria about you, to spread some fear and misinformation. And much of this is centered on American’s healthcare. And here’s the reality, our friends across the dais here, are wanting to do a single payer government run system. And they fear that a constitutional court would block them from taking control of healthcare, from taking private health insurance away from 153 million Americans. And they have centered this entire attack talking about the ACA or Obamacare. And as I said yesterday, there are 8.3 million Americans in the Obamacare program. And in addition to the 153 million that have private health insurance, there are 57 million senior Americans that have been paying in to Medicare, all their working life. And they would lose that with them with a government run single payer system.

And I feel like that our friends across the dais have really tried to paint you as a monster with an agenda. And I have appreciated that you have said repeatedly, “I have no agenda.” And we know that, as I said, they’ve got their goals, they have their goal on healthcare, for socialized medicine, for ending the doctor patient relationship, for making a bureaucrat patient relationship. They’ve even said preexisting condition coverage would go away, which is not true. That is widely supported by Republicans and Democrats. It actually originated with Democrats in the Senate and Republicans in the House. And they’ve also said older children would lose their health care, not true. Again, that has bi-partisan support.

But I think what has struck me the most through some of these comments is that they say that you have to have diversity in order to have equality. But what I have watched them do through this entire process of questions and talking with you and opening statements, is they have chosen intellectual isolation as opposed to having diversity bring a different perspective. And to me, that is really very sad. And to my friends across the aisle, I would say that the American people are no more afraid of the ideas of a Catholic woman than they are of the words splattered on a protest poster, being held by a liberal woman. They don’t fear that.

I’ve also found a few things said about you to be unnecessarily condescending. And I regret that. I know that some on the left think they can verbally pound you into submission, to a more leftist agenda. I found it very curious that one of our colleagues even said that they fear you would usher in conservative activism on the courts. But one of the things that those of us on our side of the aisle continue to say, we don’t want activist judges, from either the left or the right. So my colleagues should be comforted in the fact, we don’t want judicial activism, period. End of sentence. We want jurists, that are going to call balls and strikes, that are constitutionalist, textualist, originalist. That is important to us.

And some of my colleagues on the other side of the dais have seemed to be quite amazed that you could balance career and family. And I would think that they would choose to praise you, for finding a way, to do the work that you feel called to do and balancing it all. Maybe they should be curious about how you meet the demands of family and work and friends and church and all the different balls. I know when my kids were small, I felt like I was juggling balls coming and going. And now that I have grandkids, I feel about that same way, sometime. And they have been almost… Unfortunately, have this tone of condescension around that there would be a woman from the political right, who would try to have it all. And as I tell my daughter regularly, “You can have it all, just not at the same time. Things have to get spaced out and you take these tasks as they come.”

And we see that what they have done is to continue to project their thoughts, their desires, their concerns onto the American people, using words about malicious fear, terrified, scared. The American people are not afraid of you. They wanted to lecture you, I found it condescending the way they accused you of not understanding recusal rules. I appreciated that you were quite able to defend yourself on that point.

When my team and I were talking about this, I told them… Yesterday, I sat here. Now, Senator Kennedy talked to you about a Louisiana author. I thought about a Nashville songwriter. In Nashville, we say, “Everything begins with a song, begins and ends with a song.” Now, one of my old neighbors, the late great Eddie Arnold, had this song that was a great song. It was a love song. But the title of that is very applicable here. The song was called, You don’t Know Me. And in one of our visits, one day, I ask him about the story behind the song, which many times is more interesting than the lyrics themself. And he said the story behind the song, what he had shared with the songwriter who wrote it, was that many times we miss the richness of a relationship because we don’t stop and take the time to get to know someone.

And that I think, is what my colleagues did to you. They made this all about the Affordable Care Act. They made it all about issues that they wanted to talk about, because we are 20 days away from an election. And what they did was, in the projection that they did, of projecting their thoughts onto the American people, they projected stereotypes onto you. Those stereotypes are what they think about us as women on the political right. And they enjoy being able to mock and to ridicule and to diminish and to demean. To them, it is political sport. It is the politics of personal destruction and it is wrong. It is wrong. I think one of the things that really gets them is this, you don’t fit into their elitist format. You’re a girl from the South, from New Orleans. You went to school at Rhodes, in Memphis. I don’t know if my colleagues have ever been to Memphis, or ever been to Rhodes, which is a wonderful school. But you don’t fit into their Harvard, Ivy league type group. You’re not a part of the clique or the club. So you left Rhodes, you go to Notre Dame.

And people look at you and say, “Exceptional. She is doing great work. We’re going to help her to get to a different spot in her career.” And they did. They opened doors. You came to DC, you clerked. But Judge, you messed up, you went back to Notre Dame and you chose to teach and to have a family and to have friends and a sense of community, right there in the middle of the Heartland. And see, now they don’t want to admit you got where you got, you earned it. Nobody, nobody gave you a shortcut, you earned it. And that is why we are so honored to support you. Thank you.

Mr. Graham: (03:07:42)
I’d like to associate myself with those comments Senator Blackburn. I’m going to tell you about where I grew up. I don’t know why, it just seems to be a good way to end this thing. It’s got nothing to do with anything, but I grew up in a small town called Central, South Carolina. First in my family to go to college. My dad owned a bar, a pool room and a liquor store. And my mom ran the bar. My dad ran the liquor store. And when I was old enough, I ran the pool room. This is why I think I’m a good Senator, is good training for this job. But I remember, speaking about country music, we had a piccolo. You know what a Piccolo is, Judge?

I don’t know what a piccolo is.

Mr. Graham: (03:08:24)
Well, you’re too young. A piccolo is something you put money in to listen to the song. And the one song that I remember to my dying day, talk about country music titles, was My Wife Ran Off With My Best Friend and I Miss Him. So this is a wonderful country. And I just want to say to my Democratic colleagues, I have lost sleep over this hearing. I did not know how it would go. There’s a lot of tension, 2020 is the year that is unbelievable in every fashion. You’ve asked challenging questions of the nominee. You’ve asked probing questions of the nominee. And at times you’ve done some of the things that Senator Blackburn talked about, in my view. But thank you on behalf of the country for allowing us to get through this hearing in a fashion that I think it is befitting of the Senate. To my Republican colleagues, thank you for being patient. But this is not about us, this is about you, Judge. I will end where we began. The hope was not to really change anybody’s mind, I don’t think that’s possible in today’s environment. And I say that, accepting 2020 for what it is. But I’m hoping that people who did not know, know you better. I’m hoping that young women who are conservative, see hope in you, what Senator Blackburn said. I hope people who’ve listened, find your disposition reassuring. You’re one of the most amazing human beings I’ve ever met in my life. And that’s saying a lot because I’ve got to meet a lot of incredible people as a Senator and otherwise, serving in the Air force. Your knowledge of law is just unbelievable, deep and wide. Your judicial philosophy, I think, is very mainstream. You’re exactly who a Republican would be looking at picking, not so much a Democrat. And that’s not a slam on you because elections have consequences. And to my good friend, Senator Whitehouse, I want to reform the system, it needs to be reformed. But nobody had to spend 15 cents to tell me that you’re qualified. I figured that out on my own, I followed your career from afar.

Mr. Graham: (03:10:41)
And this is the first time I’ve really had a chance to interact with you. And all I can say is I’ve seen a lot of people come and go. We’ve had some of the most talented people in this country sit where you’re sitting. And you’ve accorded yourself well, you have much to be proud of. Your children have much to be proud of in their mother. Your husband has much to be proud of in his wife. You have much to be proud of in terms of how you served your country thus far. And with Amy Barrett, the best is yet to come. So in another time and another place, you would get everybody’s vote. It’s not about you, it’s about us. Somehow we have lost our way. There’s no use blaming one side versus the other. It always seems to be that our people get treated pretty harshly.

Mr. Graham: (03:11:38)
I voted for Sotomayor and Kagan, because I saw in them the qualities that a Democratic president would be looking for, and the character, the integrity, that the public would appreciate and would be fitting of the job. Elections do have consequences. This vacancy came about through a tragic demise of one of the greatest women of any time. She did things that no other woman was able to do and through her actions paved the way for women to achieve their goals. She has a different philosophy than you do judicially. That is okay. I hope it’s okay that you can be pro-life and adhere to your faith and still be considered by your fellow citizens worthy of this job. I think you have met every test that any reasonable person could impose, in terms of qualifications. I think you made every test in terms of disposition and character that the public could hope for, in terms of having somebody sit at the table at the Supreme court.

Mr. Graham: (03:12:54)
You will be confirmed, god-willing. You will have my full support. I see in you, someone who’s not only highly qualified to be in the court in every way possible, but somebody that has broken new ground in a positive way for the country. So what we will be doing now is going to close session. The FBI evaluation will be presented to the committee, the standard practice for every nominee. We will meet again here, just in… Where’s the room?

Dirksen G50.

Mr. Graham: (03:13:36)
Dirksen G50. You will be with us. We do this for every nominee, going back to Chairman Biden. And it is over, the hearing part is over. You can have two glasses of wine tonight if you’d like.

Speaker 5: (03:13:50)
Mr. Chairman?

Mr. Graham: (03:13:52)
Yes.

Speaker 5: (03:13:54)
I’ll defer to Senator Durbin, If he wants to go first.

Mr. Graham: (03:13:58)
Yes. I would just like to finish my thought. Then we’ll defer to Senator Durbin. The hearing part is over. You acquitted yourself well, but the journey you’re about to take is going to be challenging. It’s going to be rewarding. And may God bless you in this endeavor. Senator Durbin.

Senator Durbin: (03:14:17)
Mr. Chairman, on behalf of the Democratic side, I won’t speak for Senator Blumenthal. He can certainly add his own comments. Thank you for your fairness in this hearing. I heard no objection, nor will I, about the way you’ve conducted this. You’ve given everyone, a chance to express themselves. You’ve been a little flexible on the time, and I thank you for that. It is hallmark of what you brought to this committee, and I hope it continues through the remainder of this negotiation and deliberation. To Judge Barrett, thank you for being here. This is an ordeal. And I’ve seen it from this side many, many times. And I want to thank your husband and your family, for joining you in this effort. I’m sure they’ll take away many memories, and some will be good, of this experience, which you can talk about for years to come.

Senator Durbin: (03:15:12)
I do want to say one thing that was mentioned yesterday, that always strikes me. And that is the impact of this experience on your children. I heard you or someone say that, “It was painful, there were painful moments for some of the kids.” I’m sorry. I hope that I was not the cause and we were not the cause. But I will just tell you, they are innocent victims and they should not have to go through this. But each of us in public life can tell you back a story or two as well, of our own family experiences. We put our names on the ballot, we’re the targets. And when they go after my family, it just infuriates me, just drives me crazy. It happens. And sadly, it happens too often. But thank you for being here.

Thank you for your kindness, Senator Durbin.

Mr. Graham: (03:16:02)
Senator Blumenthal.

Thanks Mr. Chairman. I want to join in Senator Durbin’s remarks, thanking you for being here. I also have additional remarks. I’m assuming, Mr. Chairman, that at the beginning of the session tomorrow, we’ll be permitted opening statements?

Mr. Graham: (03:16:23)
I am glad-

Rather than taking time now.

Mr. Graham: (03:16:26)
Yes.

I will have comments on the process and on comments that have been made by others, President Trump, by some of our colleagues here today and over the course of recent days. But I do thank you Mr. Chairman, in giving us that opportunity first thing tomorrow, before the markup begins.

Mr. Graham: (03:16:53)
Thank you very much. We’re going to meet tomorrow at nine o’clock, we’ll have an executive business meeting. We’re going to hold a nomination over, consistent with the practice of the committee. And we’ll talk among ourselves tomorrow and give everybody a chance to express themselves. We’ve got a panel of four and four, four, four, four against, we’ll hear from them, we’ll hear from the ABA. And we’ll meet tomorrow at nine o’clock and we will gavel this part of the process to conclusion. We’ll meet in Dirksen G50. God bless you. Judge Barrett, thank you very much.

Thank you Chairman.

Amy Coney Barrett Senate Confirmation Hearing Day 3 Transcript

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