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tv   Part 3 Supreme Court Nominee Amy Coney Barrett Confirmation Hearing - Day 2  CSPAN  October 14, 2020 2:25am-4:55am EDT

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messages. washington journal is live every morning at 7:00 a.m. eastern. the third day of the confirmation hearing resumes with judge barrett taking more questions from committee members who each have up to 20 minutes. that gets underway at 9:00 eastern, live on c-span and you can listen live on our free radio app. ♪ youru're watching c-span, unfiltered view of government. created by america's cable television companies as a public service and brought to you today by your television provider. to of judge amy coney barrett's conversation -- confirmation hearing. this included questions from senators blumenthal, tillis, geraldo, booker, and crapo.
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[inaudible] >> senator blumenthal. >> thank you very much.
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thank you for being back. you very much, mr. chairman, thank you for being back, your honor, and thank you to your family as well. i want to begin by saying, perhaps not surprisingly to you, that i was really disappointed by your responses to a number of my colleague's -- most recently on the coons -- issue of whether you would purchase fate in a decision involving the upcoming election if you were confirmed. i continue to believe that if you were to participate in a decision involving that enduring,it would do explosive damage to the court. i think you know it would be wrong, not because of anything you have done. fact, i am not raising the issue of whether you have done any sort of deal or commitment
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because of what donald trump has and my republican colleagues, because they have indelibly put at issue your integrity through their statements. the president has said that he is putting you on the court as the ninth justice, so you can decide the election. he has been very clear and transparent. and the american people are not dumb. they are watching, and they are listening, and if you were to case, if it goes to the supreme court, the american people would lose faith and trust in the court itself. it would be a dagger at the heart of the court and our election isf this decided by the court rather than the american voters.
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so i wanted to begin by making that point and then go to, again, the real people, who are really in this room with us and who will be affected by you, as a justice. youerday, i introduced to a 10-year-old. i was with him on his birthday. he is a remarkable champion. he was diagnosed, you may remember, with duchenne muscular dystrophy at age four. his parents were told to take him home and give him a good life, because he would soon lose his ability to walk, and his muscles would get so weak, that he would eventually lose his , and he is stil l smiling. that smile isnd pain, then, physical
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anguish of going through the needles, the prodding, and that treatment, but for his family, it is also the anguish of wondering whether they will be able to pay for treatment that has kept him alive, and whether he will be with them for all of life's milestones. they sent me a they sent me a letter that they asked me to share with you saying to you, judge barrett, please protect connor. for millions of other americans, 135 million americans, many children like connor, but also christine miller from bloomfield connecticut. she was diagnosed with a thyroid condition. it was only discovered because of the aca, which gave her
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affordable coverage for the first time in a long time using connecticut's exchange, health care exchange. they wrote for people like julia in cheshire, connecticut. she suffered from headaches for years, and she put off going to a doctor because she lacked insurance. so typical and common for people to put it off. when julia finally saw a doctor without insurance, she learned she had a brain tumor and was eligible for coverage under connecticut's medicaid expansion program, which was created by the aca. in her words, "it was a godsend." part,e these stories, in because you know, i'm sure, protection for people who suffer
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from pre-existing conditions is on the line in this case that will come to the supreme court only a week after the election. i want to be crystal clear, you stated to sen feinstein: and i'm going to quote -- senator feinstein, and i'm going to quote, the case next week doesn't present that issue, not a challenge to pre-existing conditions coverage, or the extreme lifetime maximum relief from right, but if th andial court is upheld, there is no severability, the entire act goes down. that is what the trump administration is asking the court to.
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that's what the plaintiffs one done. correct -- want done? correct? >> i gather -- on to anotherove , this onee case letters some of the senator hawley was mentioning. i feel i need to raise them, because senator hawley asked about them, so did senator lahey. i want to clarify what they mean. i want to make absolutely clear, i detest and oppose any
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askingus tests, i am not you any questions about your religious beliefs. i'm going to be asking some questions about your legal position. so in case i'm unclear in any of my questions, i want you to tell me. 2006 open onto this letter sponsored by an organization then known as the st. joseph's county right to life, which was published in the south bend tribune. is that the letter senator hawley was mentioning? judge barret: i believe the statement on the left, senator hawley had read the language. i can't remember it verbatim, but it was something like "we support the right to life from fertilization." yes. sen. blumenthal: it related to roe v. wade's legacy being
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"barbaric." judge barret: i don't think that's part of the statement. i think it's part of the ad on the page next to it. sen. blumenthal: side-by-side, correct? judge barret: i believe it was in the paper, i don't know i saw it in the newspaper, but yes, that is my understanding. sen. blumenthal: that's how it appears. judge barret: so yes. sen. blumenthal: the st. joseph's county right to life sponsored the u signed. judge barret: i think the st. joseph's county right to life organization was the one who presented the statement i signed at the back of church. sen. blumenthal: i want to give you an opportunity to clarify, you did not disclose that letter when you were nominated to the seventh circuit, did you? judge barret: i did not, and i'm glad you brought that up, because i want to clarify, number one, i did not have any
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recollection of that letter. i signed it almost 15 years ago quickly on my way out of church. the questionnaire asked me for 30 years worth of material, and i put in more than 1800 pages. i did not recall it. after it came to my attention, i went back and looked at the questionnaire, and i don't think that particular statement is responsive to question 12, which i think is the closest it has come. of theevent, it is part public record, and i'm happy to discuss it. sen. blumenthal: it's part of the record now, and it is a letter, the questionnaire asked for letters, have you disclosed it now? have you provided it officially? judge barret: as i said, i supplemented my questionnaire with other material that came to light that i do think was responsive.
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that one, and i would be happy to answer questions, if you want questions for the record with more specific detail, but i did not understand that to be responsive to question 12. sen. blumenthal: will we know about it only because the guardian made it public, i believe. let me ask you about another letter, 2013. you signed onto this letter regarding roe v. wade. it was sponsored by the university faculty for life at notre dame. do you remember that organization? judge barret: i do. sen. blumenthal: the letter ascribed roe v. wade infamous, and stated the signatories "renew our calls for the unborn to be protected in law." correct? judge barret: yes, i believe the full statement says "our full
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support for our university's commitment to the right to life." notre dame is the catholic university and embraces the catholic church on abortion. as a faculty member and a member of the university faculty for life, i signed that statement. sen. blumenthal: but you did not disclose that letter? judge barret: i produced 1800 pages of material and all six prior nominees have had to supplement because they forgot things. 30 years worth of material is a lot to remember. sen. blumenthal: you disclosed it about three days ago. judge barret: because that's when it was brought to my attention. i had no recollection of it, and it surfaced in the press, so it came to my attention. then i supplemented. i thought it was responsive, because i thought it was a statement of an organization i was part, and i belonged to the university faculty at the time. sen. blumenthal: if this process had been a little less rushed, you might have had more time to go back and recall some of these documents? judge barret: as i said, all six
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prior nominees, the most recent six, have had to supplement, too. i don't think it had to do anything with time, but the volume of material. sen. blumenthal: and when we spoke, when you appeared before this committee in connection to your 2017 nomination, i did not have the benefit of any of these documents, although i asked about right of privacy and validity of roe v. wade. judge barret: i said on my sjq when i was nominated to the seventh circuit, i produced all of the material i could find, and conducted searches to find things i forgot, and did not find that. i understand somebody had to manually go to notre dame and look through archives, i did not remember it, i could not find it. i was not trying to hide it. sen. blumenthal: i apologize for , respectfully,u i want to share another health care story with you. it is about samantha.
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one night in january 2017, she went out with a few friends and coworkers. she woke up the next morning in a coworkers home confused, scared, covered in blood, she had been raped. after she was raped, she was, in her words "a zombie." she cannot change clothing, could not shower, could not drink or think. she wanted the event to be erased from her memory. samantha's attacker also began stalking her, and she was andggling with depression ptsd. in march, samantha took a pregnancy test, then another, then another, they kept coming back with the same result, pregnant. after the horrible violence she faced, she simply could not process that she was now
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pregnant. when samantha shared her story "i knew if isaid could not end this pregnancy, it would end me." so she decided to get an abortion. the landmarkjudge, roe v. wade decision gave her that option. it gave women the right to decide for themselves, whether and when to have a child. roe did not compel samantha to get an abortion. it did not tell her what she had to do, but it gave her that choice. question that i would like to ask you concerns your legal position.
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protect constitution samantha's right ot hto have an abortion? judge barret: roe v. wade clearly held the constitution protected a woman's right to terminate a pregnancy, they upheld the central holding and found in greater detail the test the court uses to consider the legality of abortion regulations. sen. blumenthal: i'm asking you this question, because the group that sponsored the first letter, st. joseph's county right to life, as it was then known, states "abortion is never the right answer, even in cases of sexual assault or where the pregnant woman's life is in danger." and the purpose of the letters you signed seem to be a statement of legal position, but you are saying there is a
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constitutional right to an abortion. judge barret: the statements i signed from the st. joseph county rights to life did not say anything about rape, insets, or any of those things, it simply validated the teaching of my church on the sacredness of life and protection to natural death. sen. blumenthal: what i hear you saying is in the constitution, there is that right? judge barret: when i was talking about roe a moment ago? sen. blumenthal: roe was correctly decided, you are agreeing? judge barret: what i said was roe held the constitution protects a woman's rights to terminate a pregnancy, casey reaffirms that holding, and many cases after kc have affirmed that holding again for women's health, for example. might be talking
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past each other, because the statements i signed were statements of my personal beliefs -- sen. blumenthal: not your personal beliefs, your legal position. are you willing to say roe was correctly decided? because that's really the essence of the question, here. judge barret: senator, as i said to others of your colleagues in response to questioning, it is inconsistent with the duties of a sitting judge, the practice of every nominee that sat in this seat before me to take position on cases the court has decided in the past. sen. blumenthal: i think samantha and a lot of rape eally deeplyuld be r fearful about that answer, because it provides no reassurance you believe roe was correctly decided. let me talk about tracy. i want to tell you about her, because she came to me, told me
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she was diagnosed with stage iv anometriosis, and it caused ongoing inability to have a healthy pregnancy. but as she said, she was one of the "lucky ones." she had access to care and was able to receive treatment to assist in getting and staying pregnant. maybe yve encountered, ou have, many members of the military, veterans, who had sought similar kinds of treatment. some because they had suffered wounds of war. tracy was scared when she saw the executive director of the st. joseph's county right to , "we wouldly stated be supportive of criminalizing the discarding of frozen embryos for selective reduction through the ibs process."
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ask you,wanted me to and she asked me to pose this question, is it your legal crimeon that making it a would be constitutional? judge barret: the statement i signed, as we discussed, affirmed the belief of my church with respect to matters of life. sen. blumenthal: i'm not asking about what you signed, i am about your present legal position. crime -- ibf a judge barret: i was trying to enter. quoting positions from the st. joseph county right to life, i'm not a member of that organization, so i'm not responsible for statements they make. the statement i signed said what you and i had discussed, and says nothing further than that. policy position someone might
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take, as i have said to your colleagues. it is not up to me to be in the business of expressing views. i'm happy to talk about views i've expressed when i was a private citizen, but now i'm a judge, so i cannot publicly express views. sen. blumenthal: just to be absolutely clear, i'm not asking you about the st. joseph's county right to life or their positions, and i understand you may or may not disagree or agree with them, but your legal position, ibf treatment, and i'm not going to ask again, just this last time, criminalizing it? would it be constitutional? i think there's a clear answer. judge barret: but senator, i've repeatedly said i've had every other nominee who sat in this seat that we can't answer questions in the abstract.
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that would have to be decided in the court of the judicial process, with the legislature to actually do that, and a litigants would have to come to court. they would have to be brief, arguments, consultation with colleagues, opinion writing, consideration of precedent. so an off-the-cuff reaction from that would circumvent the judicial process. sen. blumenthal: again, i'm disappointed, i think tracy would find that response shewhat chilling, because millions ofs, maybe women, potential parents, would be horrified to think ibf treatment could be made criminal. i understand you are not answering the question, but i think she would be deeply fearful. do you think it would be constitutional to make it a crime for doctors or health care providers to provide that care
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or abortion care? judge barret: again, that's a hypothetical question. give off-the-cuff responses about abstract issues, and i should clarify to say it doesn't matter if they are hard or easy questions, it is just any questions that call for an abstract legal opinion, not one appropriate to give, either as a sitting judge or the nominee. those questions can be answered only through the judicial process. sen. blumenthal: just to be clear, there are millions of women like samantha and tracy, who are terrified to think their doctors and health care providers would be potentially in jail, at risk of prosecution, doctors exercising currently protected rights that samantha
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said saved her life. i believe our health care providers are heroes, particularly during the pandemic. i want to ask you one more question about these documents. letter you signed, there is the following statement , we renew our call for the unborn to be protected in law, and welcomed in life." what does it mean for "the unborn to be protected in law?" that statement means there are no valid constitutional protections for abortion, and therefore roe v. wade should be overturned. judge barret: i think that statement is an affirmation of life. it points out that we express
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our love and support for the mothers who bear them. again, it was a statement validating the addition of the catholic university at which i ,orked and support for life support women in crisis pregnancies, to support babies, so it is really no more than the expression of the pro-life view. sen. blumenthal: i expect we will be talking more about this issue tomorrow. to anotherove now topic, you, senator durbin, and others talked about your dissent should be barred, and i think your approach in effect, you serve the legislature upon appropriate role in making policy judgments in the case of cantor, which by the way, you put first on the list of decisions that you thought were most important, that you have
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written, is that correct? judge barret: i don't remember the order in which i listed them. sen. blumenthal: it was first. judge barret: i accept that, i just don't member the order. i did list it. i remember listing it. sen. blumenthal: okay. but that decision seems to usurp the legislature's role in deciding who should be permitted to have firearms and who should not, because you decided the legislature was wrong to classify felons as not deserving of firearms. you decided as a matter of policy that when they were not dangerous, they should have that right, that's a policy or legislative judgment, and i think it has huge ramifications for real people across the country. to talk about one from sandy hook, connecticut.
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natalie. she is shown with her brother daniel. at sandy hookled at elementary school in newtown, connecticut on december 14, 2012. daniel was seven. i was there that day. i saw the parents after they lost 20rned they had beautiful children. educators died, as well. in the firehouse, there was unspeakable grief. eight years later, natalie says that grief remains with her. but natalie, like newtown, is resilient, strong, and heard --
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hope and action, many young people across the country are leading a movement to deal with the epidemic and scourge of gun violence in this country. what happened at sandy hook was not an isolated incident. there have been 236 other mass shootings in the last decade. gun violence has taken more than 354,000 lives in rural communities, urban communities, all around the country. and i'm sure in indiana and south bend, as well. cantor goes in farther than justice scalia and heller. you characterized it as radical. it is in effect an outlier. it is in fact radical.
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judge barret: did i say it was radical in the opinion? sen. blumenthal: i think you said "it sounds kind of radical to say felons can have firearms." that's a direct quote. judge barret: i did not remember that particular language. i just don't recall it. i'm not an aching about it -- i'm not nitpicking about it. sen. blumenthal: we can look it up. judge barret: that's fine. i don't think you are making it up. i will check it and look it up. sen. blumenthal: it sounds kind of radical, because it is radical. court appeals, except maybe the seventh circuit have adopted this. judge barret: the third circuit, i think as a rule -- sen. blumenthal: i knew that there was one circuit, i wasn't sure which one. mine was with the
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bond decision that had been decided. sen. blumenthal: cutting through all of the legalese, and we have had a bit of it going back and does, what this approach is it potentially means connecticut's gun safety provisions that the people of newtown, kristin and michael song, on behalf of their son, ahan, who perished, because measure called ethan's law. common sense measures that might have prevented the death of shane oliver, janet rice's son, 2012.ed on october 20,
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shane was killed when he was 20 years old in hartford. he died fighting for his life in hartford hospital. the emergencyike risk protection order that connecticut now has. 19 states. they have these laws. they save lives. these laws that minimize risk your well the reasoning of dissent. judge barret: respectfully, my dissent would not reach these issues. it was about the narrow question about whether a felon who had sold fraudulent foot inserts could automatically be disqualified from his second amendment basis, it said guns
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can be kept out of the hands of the dangerous, and did not say anything about other gun safety or background checks, they are all issues litigated around the country and were not at issue in cantor. sen. blumenthal: but supplanting the legislator's judgment about people should be protected from themselves if they are potential suicides, as when his friend was going to take his life, the emergency risk protection order would have been available, deciding what is dangerous, who is dangerous, what weapon should be taken away from him. if the courts are going to supplant the judgments of legislators, if the judges will that'ste from the bench,
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the import of your reasoning in that dissent, it may not have dealt precisely with any of these particular laws, but the reasoning throws into doubt, raises the risk to many of them. folks who live in connecticut are terrified of that prospect, at least -- judge barret: sandy hook was a tragedy. i express the deepest sympathy , but cantor, i hope you will take some comfort from it being a much narrower decision. it doesn't have any effect on those sorts of laws. thank you, senator. sen. blumenthal: thank you. senator tillis. sen. tillis: thank you. before i get started, i would like unanimous consent to submit a letter from a primary care physician indicating i have fully complied with cdc that like carolinians yesterday, and
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i'm glad -- >> without objection. sen. tillis: i would als like to put three -- put forward three letters, including one who speaks highly of your academic prowess, but also your compassion. whatld also like to cover senator blumenthalseven -- senat just did. i believe he alluded to judge barrett. it asks for letter to the editor, and other published material you have written or edited. is it fair to say that you dinner at -- that you did not write any of that petition you signed? judge barrett: i did not. all --llis: appreciate your being forthcoming, that you have submitted 1800 pages of documents.
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i. chairman, just going back, also wanted to mention that, as part of my journey through my time in quarantine, i have far.led in two studies so i will be giving blood on friday to enroll in another program at unc chapel hill, and i am scheduled to donate convalescent plasma. i hope anyone who has recovered from covid will do their part to try to heal this country from the health challenges covid has presented us with. i also would like to say, i would like to consider the and essential business. i believe the architect of the capitol and our attending physicians here have taken great measures to make sure we can safely come to work, and i would encourage anybody who works in the senate to come to work. i would also go back to feinsteinthat senator said earlier. you will not have to answer this question.
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senator feinstein mentioned earlier that we have had a surge in applications for guns or purchases for guns. i wonder if a part of that is where we find our society right now. we are seeing great cities burned and looted. my highway patrol in north carolina, 70 5% fewer applications to go into the troopers academy. forrecord high request retirement. we see that in new york, we see it across this country paid i think people are afraid, because many people, including people on this committee, are unwilling to condemn the acts of violence and condemn violence against law important -- law enforcement, which is rampant. i lost a sheriff deputy and month ago, shot protecting a family. so i said just that gun purchase up our up, but i suspect the root causes have to do with
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people's personal safety. to your family, i would encourage all your family , whors and your students taking a break, treat social media like roadkill. do not look at it. if you do, you will regret it. i also ask unanimous consent to put forth some articles or tweets from prominent people that i think give you an idea of the guerrilla tactics being used right now. and the committee, this is sounding a lot like a lobbying session. it is almost as if you are being interviewed to become a u.s. senator so you can decide policy on the affordable care act in a number of other things i will get to behind the curtains, we are seeing people say all kinds of things about you. colonizerou a white for adopting two haitian children. we have another calling you a handmade -- a handmaid in a
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clown car. there was profanity used in there. another says you are a good mom, that does not qualify you as a judge. what qualifies you as being a judge is being an extraordinary professor, student, and jurist. people need to recognize doing the bidding of this committee by attacking you outside this committee is as bad as them being in this chamber. i also want to talk about the wade andn on roe v. the affordable care act. senator feinstein, and i think the same two or three minutes, said that she wanted you to check roe v. wade but overturn heller. those seem to be incongruent, but i will leave you out there. they are asking you to basically legislate. i do not want you to do that. but when we talk about roe v. wade, the one thing conveniently missed in this discussion is arething that most people
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at odds with something that every member of the democratic caucus supports. my granddaughter went to her two-month health checkup today. she weighed in at 10.1 pounds. you cannot see this picture, but i am telling you, from this granddaddy's eyes, she is gorgeous. but she was born premature. she was discharged from the hospital within 36 hours. my colleagues on the other cited of the aisle want to talk about the broad strokes of roe v. wade . they do not want to talk about the radical policy that would shee this child away when i was three weeks premature. have complete i confidence in your integrity. i have complete confidence you will be a great justice. but i want to ask a little about your experience when you were working -- actually, i want to
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start when you were in school. when you came in, you are obviously a brilliant student and did your homework. we have her professors attest to your intelligence and your performance in school. did you ever go into a classroom where the professor was espousing one position and you are espousing another, and you ended up coming out with a different perspective? judge barrett: sure. sen. tillis: did you ever change your professor's perspective? judge barrett: i am not sure about that. [laughter] sen. tillis: that is kind of an unfair balance. to when youorward were clerking for judge scalia. quick process a to winnow out the ones where there is no split circuit, so you move through it pretty quickly. i understand that justice scalia, at least in some sessions, would have a mix of clerks. they would be across the
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ideological spectrum. was not the case when you were clerking for him? judge barrett: i would say not all four of us -- we were not all of the same mind. sen. tillis: where there ever cases where you want before justice scalia, and you thought that maybe he was leaning one way where he actually listen to the arguments from the clerk and modified his position? or was it like a professor discussion? judge barrett: i think he definitely listened. we would go in before an argument, when he was preparing, and he would pepper us with questions and will go back and forth. he wanted to hear it from all sides. it was part of the give and take. he was the one with the commission, and he was the one who made the decisions. sen. tillis: thank you. the last thing i want to say, because i want to yield back more time, is mr. chairman, you opened up this morning talking about the affordable care act. i do not think there is anybody in the u.s. senate does not want
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those people in the pictures to be cared for, but what we have in the affordable care act is something so flawed that the majority of the democratic presidential candidates said it needs to be replaced with something called medicare for all, which could be medicare for nine. we know the broken promises, that if you like your doctor or health care, you could keep them, but we are not talking about the thousands of people forced off of their job health, because you have to work two full-time jobs because the businesses cannot afford it. we need to protect everyone of them, but we also need to ensure that people who have a health plan under the affordable care act can actually afford to use it. and the catastrophic situations are life-changing, and think audit is there for them, but what about the people who will only use if they have a catastrophic situation, because they cannot afford the co-pays and underlying costs?
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we need to fix that. we should not expect a justice or the supreme court to fix it. that is our job. we should all show up here for work and get it done, and we should also work on all the other things this country is suffering from as a result of covid. thank you, judge barrett. i look forward to supporting your nomination. sen. graham: sen. hirono. i want to weigh in my -- three weeks ago, our country crossed a tragic milestone. we lost more than 200 thousand americans to covid-19. that is more than the entire population of the big island in hawaii. more than the population of tempe, arizona, cedar rapids, iowa, wilmington, north carolina, charleston, south carolina, waco, texas.
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i could go on. 200,000 american lives lost. this is a photo of a memorial outside the white house, where president trump held a reckless super spreader event two weeks ago to announce the supreme court nomination. the memorial shows 20,000 empty chairs, one chair representing 10 american lives lost to covid-19. and one of those chairs represents veronica guerrero's grandfather, who is pictured here with veronica. iowa, haswho is from experienced the painful impact of the trump administration's failure to address the pandemic. her family is composed of essential workers working on the front lines of this pandemic. her mother, who worked at a fast food processing facility, caught
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covid-19 at work and was eventually hospitalized for seven days. thankfully, her mother recovered. but then her grandparents got covid-19 and were admitted to the hospital, and although her grandmother recovered, sadly, her grandfather did not make it. all of thisencing tragedy, veronica shared, "it is insulting to see a senate that is more concerned about rushing through the supreme court nominee rather than focusing on providing relief to all the hard-working people that gave them their current leadership positions." many americans agree with veronica. they are sitting at their kitchen tables, wondering how they are going to buy food, how they are going to pay rent. millions of them, they do not have jobs. they are going to food banks for
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the first time in their lives. rather than coming up with a bill that meets the needs of the urgency of this moment, republicans are just coming up with piecemeal bills. that,s because, we know within your own caucus, you cannot agree on one bill that fits the critical needs of this country. in fact, there are at least 20 republicans, we have heard, who said we are done, we are not doing any more to help the americans suffering with covid. so here we are, racing forward with this nomination while the rest of the country is wondering what the heck is the senate doing, particularly the senate republicans? so i agree with all the people in our country wondering what the heck? this is hypocritical. this hearing shows the american public exactly what my republican colleagues' priorit ies are.
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ramming through another ideologically driven supreme court nomination. i have some letters of opposition to judge barrett's nomination to enter into the record. these are letters from lambda legal, the national asian-pacific women's forum, joined by 55 reproductive justice groups. i asked consent to enter these letters into the record. sen. graham: without objection. sen. hirono: judge barrett, chief justice john roberts has recognized that the judicial branch is not immune from the widespread problem of sexual harassment and assault and has taken steps to address this issue within the judiciary. as part of my responsibility as a member of this committee, and all the committees on which isaac, to ensure the fitness of nominees for a lifetime apartment to the federal bench or to any of the other
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positions, for any of the committees upon which they appear, i ask each nominee these two questions. since you became a legal adult, unwantedever made requests for sexual behaviors or for --y verbal requests judge barrett: no, senator. sen. hirono: have you ever faced a settlement related to this kind of conduct? judge barrett: no, senator. sen. hirono: judge barrett, do you think it is appropriate for justices to consider real-world impacts in their vision making, as justice ginsburg noted in a number of her dissents? judge barrett: the doctrine is a good example of that, because the factor of reliance interest takes into account the real world impact the way that people have ordered their affairs and relied on decisions, so there are contexts in considering part
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of that doctrine. sen. hirono: so you would say that -- you have been listening to all of us here today as well as yesterday, talking about the real world impact of striking down of the affordable care act. impacts be those fact that would be important for you to consider, should you be a justice? judge barrett: sen., to be clear, i have the utmost empathy to the stories that you have told, including the story of veronica's family. very moving. if i were a justice, the commitment i would make to you and to all people affected by follows is that i would the law as you enacted it, and i have no agenda. i would not be coming in with any agenda. i would do equal justice under the law for all, and not try to force or disrupt in any way the quality choices that you and your colleagues have adopted. sen. hirono: so are you saying
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that the impact of the affordable care act on the millions of people who rely upon it, that you would deem to be policy considerations that we should address? sen. hirono: senator, i think that you choose the law and you have structured the affordable care act. you set the policies. and i think when a court has to interpret those statutes or decide how it applies in a certain circumstance, the court looks to traditional legal materials, looks to the briefs, listens to the real world impacts on the litigants before the court arguing the case, because every case affects real litigants, real people. i said in my opening statement yesterday that when you pass statutes, they are often named for the cosponsors of the bill, but cases decided by all courts
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are typically named either parties. they affect real people. sen. hirono: judge barrett, so are you saying all of the stories we brought forward yesterday and the millions of people who are relying on the affordable care act can rely upon you, that those impacts would be considered by you, that you would consider those to be legal arguments, because when you say that you are going to law,decisions based on the the the real-life stories that we have been talking about, you would consider those to be part of the law? judge barrett: senator, every case that comes before a court -- as i was saying earlier, no case comes before a court unless it involves real-life people with a real-life dispute. it is that the job of a judge to
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take into account the real-world consequences of the parties before it. sen. hirono: does that mean you would agree with justice ginsburg that the court should be taking into consideration the real-life effect of the decisions that they make? she wrote a number of dissents saying that the majority did not consider the real-world impacts of their decisions. so are you aligning yourself with justice ginsburg in terms of what you would consider real-life impacts and the effect it would have on your decision regarding the law? note barrett: senator, i do know the particular context in which justice ginsburg was describing that. i think what i am trying to align myself with is the law and i will take into account all factors, including real-world impacts, when the law makes them relevant, as it clearly does in the doctrine. sen. hirono: i will get your
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in a moment.edent i will give you a real-life example of justice ginsburg her. lilly ledbetter worked at a goodyear plant and as a manager, she was paid less than all of her male counterparts. when she eventually realized this inequality, she sued for discrimination and the jury agreed, but the supreme court kicked her claim out of the court for being too late. the conservative majority, including your mentor, justice scalia, included a time limit to mean that she would have had to file her claim within 180 days of when her salary was decided, instead of excepting the common sense approach of viewing her paychecks as an ongoing part of paid his termination. justice ginsburg strongly disagreed with her conservative
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colleagues' approach. she wrote that the many challenges women face, including salariescopies keep confidential ph she said that the court is not -- 2018,ther case in employees who had been illegally underpaid joined together to seek backpay in court. the block this effort, their employers forced them to sign an arbitration agreement prohibiting collective action. they actually have to sign these arbitration agreements in order to even have a job, keep their job. so the supreme court's conservative majority sided with override toto worker protections laws instead of recognizing that the worker
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protection laws fall sensibly within the exceptions in the arbitration law, meaning about the work our protections laws should prevail. again, justice ginsburg strongly disagreed with the majority's approach, pointing out that blanche e -- blocking joint lawsuits would deter most individuals from seeking individual unpaid wage claims because of the fear of retaliation. she warned the majority's decision would result in hurting vulnerable low-wage workers. those are the kind of real-life impacts. the reality of women who are not paid the same as their male sixterparts because of discrimination happening that she has no way of finding out about or of workers forced to sign an arbitration clause that overrides other worker protection laws. do you think justice ginsburg was wrong to consider real-world
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impacts in her decision-making? judge barrett: senator, you know, both the case, lilly systems ared epic part of the court, and i cannot really comment or grade what prior precedent would say, how i would have decided them. sen. hirono: the precedents of the court do not take into consideration their real-world factors at play here. in fact, in the case of epic systems, the court sided with the corporation, as opposed to the workers who were trying to remedy a wrong. and in lilly ledbetter, she was totally out in the cold. again, the court settled precedent, but it was a precedent not based on real-life impact. so you are sitting here and
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telling me you would follow the law -- after all, the law, for example the affordable care act, that law embodies the policy that says we want as many people as possible to be covered under insurance, and if the is struck down, that policy, that law would be struck down. so i know there is some discussion about some distinction that you make about policy versus the law. i find that distinction to be a fiction. because every law, or most laws we pass them are supposed to have real-world impacts. otherwise, why should we pass the law? so the fact that you are not that.o -- let me rephrase i think it is pretty clear. you do consider justice scalia to be your mentor, that your judicial philosophy is in alignment with him. i think we all acknowledge that
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justice scalia and justice ginsburg were at pretty much opposite ends of the spectrum, so since justice ginsburg made it a policy, her approach was to look at the real-world impact, justice scalia's was not. so i would say, when it comes to the affordable care act, the real-world policy considerations will not be taken into consideration by the conservative judges would mean that 23 million people could lose their health care. that 100 33 million americans with pre-existing conditions could lose critical protections for their health care. and more than 7 million americans who have tested positive for covid-19 would probably be added to the group of people with existing conditions, and millions of americans would once again face lifetime limits on coverage for essential services.
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women wouldlion lose coverage for critical maternity care services. and we know black and native women are more than two times likely to die from pregnancy related complications than white women. that young adults would no longer be able to stay on their parent's health insurance plan until age 26 at a time when our country is dealing with massive job losses. have posed an you artificial distinction between policy considerations that is left up to us and following the law. because if your criticism of justice roberts' decision, in therding the -- in affordable care act, he would have struck down the affordable care act.
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if you followed your criticism of him in sustaining the affordable care act, he would have struck it down. so i would conclude that your approach is, in fact, not like that of justice ginsburg, who did care about what would happen. story just tell you one of a person who will be impacted in the real world if the affordable care act is struck down. and i know so many of my colleagues have already established that the president expects you to strike down the affordable care act, and you have already established you made no such covenants, but clearly that is why this whole process is occurring, so you can be sitting on that court in time to hear the affordable care act in front of the supreme court. one of the people who will be impacted is elizabeth from texas.
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she moved so she thought she would have stable coverage. and all of that changed when she couldn't afford health insurance. she had to resort to using inhalers.expired the aca allowed her to get health insurance. and jordan, who has a rare illness that would cost $500,000 per year for her medication, and if not for the affordable care act, she would not be able to afford it. who can afford $500,000 a year to keep her going? and people like kimberly, who we talked about yesterday. the aca allowed her to get a mammogram, which revealed she had breast cancer.
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so the real-life impacts on people like elizabeth, jordan, and kimberly, where you say you will follow the law, it leaves me wondering whether all of are whatl-life impacts you would call within the scope of the law that you would decide, should you be confirmed. you would be deciding on the constitutionality of the affordable care act november 10. by the way, you noted the issue in the affordable care act -- the other issue in the affordable care act is the entire constitutionality of the law, because the district court, the issue was whether the district court in texas was correct in deeming the entire law unconstitutional. so in fact we are facing the by the wayside. let me move on.
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asked a lot of questions about whether or not you would overturn roe v. wade. expect, president trump that you would do so, because, as he said, if we put another two or three justices on the court, that will happen, meaning the reversal of roe v. wade. in my opinion, because i am putting pro-life justices on the court. a number of us have mentioned that, as far as senator hawley is concerned, where he said i will only vote for those supreme court nominees who have exquisitely acknowledged that roe v. wade was wrongly decided, and there is a whole quote i have from him, but after you were nominated, senator hawley made clear that you passed this litmus test, and he said your record is awfully clear, where she meets my standard of having evidence in the record. by the way, he had noted that he started this evidence in the record not from your post nomination assurances to him. your prior record, he said
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you met the standard. we usually expect justices to uphold and apply long-standing precedent. inwas the president wrong concluding that you would vote to overturn roe v. wade? judge barrett: senator, again, i about make any statement any case or precedent, but i will repeat what i said throughout this hearing. that i made no promises to anyone. i have no agenda. there are 598 volumes of the united states' report. that is something that judges build on. justices do not go to the court to have a book burning. sen. hirono: i know you have reiterated that, but we are left with the positions you have already taken. so the 2006 newspaper ad you signed that said you "oppose
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abortion on demand and defend the right to life from fertilization to natural death or com." it also said it is time to put an end to the barbaric legacy of roe v. wade. in a speech you said what you said the roe decision permitted abortion on demand, after you said you opposed abortion on demand in 2006. what underscores my concern about your willingness to isrturn roe v. wade, which really the expectation that the president had and which senator hawley fully expects you to do, because you have met his litmus precedent, you have argued a justice's duty to follow the constitution, which is regarding your view on precedent, that she should "enforce her best understanding
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of the constitution rather than a precedent she things clearly in conflict with it." and you said constitutional toes are the easiest overrule, because you bring your own assessment of what the constitution requires. and as you said, if the conflict withn the constitution, in your view, the precedent falls by the wayside. you indicated there are a few cases immunized from overturning, because they would not be challenged in the first place, i.e. brown v. board of is not one of roe those cases, because we know they are all kinds of challenges to roe basically because the states are very busy passing all of these laws that limit a woman's right to an abortion.
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you also said, in that speech, that even if roe is not overturned, you said, without overturning roe, you explained the question is how much the freedom is the court willing to have states -- willing to let states have in regulating abortion. there are 14 cases right now relating to state abortion restrictions making its way through the circuit court, and some of these are going to land in the supreme court. and these 14 cases include the following resections. six cases allow bands on abortion ranging from six cases to 24 weeks. two involve a particular type of procedure that accounts for nearly all second trimester aortions, one case involving demand fetal remains be
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buried, four cases involve so-called reason bands, two cans -- two bands related to parental consent. there are reasons why the american public are worried you will overturn roe or strip it of all meaning, because you have these cases that you say the open question is how far the supreme court will go in leading states but limits on abortion. that is why a lot of people are very concerned about your views as articulated pre-nomination. this morning, senator feinstein asked you a question about the 2015 caseurt's obergefell v. hodges.
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i was disappointed that you did not have a direct answer on whether you agreed with the majority or whether you agreed with your men sure that no such right exists in the constitution. even though you gave no answer, i think your response spoke volumes. not once but twice, you use the preference" to describe those in the lgbtq community. -- "sexual clear preference" is an offensive and outdated term. as a just that sexual orientation is a choice, and it is not paid sexual orientation is a key part of a person's identity. that sexual orientation is both a normal extension of human sexuality and immutable. part of the ma
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jority's decision in obergefell. if it is your view that sexual orientation is merely a preference than the lgbtq community should be rightly concerned about whether you would uphold their constitutional right to. -- to marry. i do not think it was an accident you use the phrase sexual preference. one of the legacies of justice scalia is a resistance to recognizing those in the lgbtq community as having equal rights under our constitution. in 1996, estes scalia wrote a --senting opinion defending justice scalia wrote a dissenting opinion -- wrote a dissenting opinion in lawrence v. texas. 0 years later, in u.s. v.
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supported the federal government's right to deny -- and he argued there was no constitutional right to same-sex marriage's under justice scalia's judicial philosophy, which you have said is your own, states could openly discriminate against the lgbtq community, same-sex couples could be denied the right to get married, and they could actually be thrown in jail if they engaged in sexual intercourse. there are an estimated 11 identify asts who a dbt q. -- as lgbtq. people are really afraid that if you are confirmed, you would join with
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other conservative members to roll back everything the lgbtq community has gained and push them back into the closet. two sitting justices are already calling for obergefell to be narrowed, if not overturned. last week, justice thomas issued deny --ent to they accuse the courts of, justices alito and thomas, of reading a right to same-sex marriage into the 14th amendment, even though that right is found nowhere in the text, and these two justices signaled that obergefell is a problem that only the court can fix. so coupled with your use of the term "sexual preference," coupled with your view on
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justice's and that a analysis ofown constitutionality should overtake or overcome precedence, if it is in conflict, so this is why so many people in the lgbtq community are so concerned that you would, in fact, joined the signaling that these two justices have already put out there, that obergefell will fall by the wayside. thank you, mr. chairman. sen. graham: thank you. senator ernst. ernst: thank you, mr. chair. judge barrett, thank you for being here with your beautiful family once again. we appreciate the support you are showing to judge barrett by being here today. judge, i want to offer you the opportunity, at this point, is
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there anything from earlier today that you feel you need more time to respond to? judge barrett: thank you, senator ernst. i would like to make a quick follow on some of senator hirono's comments. one, i have set a number of times during the hearing that i cannot comment or grade existing precedent, and i want to be clear that the kind -- the point of doing that is not to say whether i agree or disagree with implicitly -- not it,s not disagreeing with the point of not answering it is it is inappropriate for me to say a response. and i certainly did not mean and would never mean to use a term that would cause any offense in the lgbtq community. so if i did, i greatly apologize for that. i simply meant to be referring
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-- inrgefell and wrists respect to same-sex marriage. sen. ernst: thank you. it goes back to the discussion you had with the black robes. when you put that robe on, you are neutral, correct? judge barrett: yes. sen. ernst: thank you. i wanted to go back because of the issue of coronavirus. it has come up once again in the committee room, and i want to y that point and clarifi the senate gop did bring up a relief bill in number of weeks ago, and in that hill, there was a $300 boost in weekly unemployment insurance benefits, there was a second pass at the paycheck protection program for small businesses. there was 105 billion dollars for k-12 schools and colleges. we have new scholarship programs. and $50 billion to help working
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parents find accessible childcare options. there was support for farmers and ranchers impacted iv pandemic. there was 31 billion dollars for development and distribution of vaccines, drugs, and other medical supplies, $16 billion for testing and contact tracing, there was loan forgiveness for the postal service, liability protections for schools and health care providers, and an expanded charitable deduction for contributions made during the pandemic. and many, many other things. it was a very, very good bill, it was what we could agree upon, but i would note that senate democrats did block those provisions that would have gone to help families like veronica and others in iowa that are suffering from the pandemic. of course, our greatest sympathies to those who have been impacted all across the united states. mr. chairman, i would like to
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enter into the record three letters here for the committee and an op-ed, letter of support from 48 christian women's scholars. the second is a letter from a group of governors across the country, including our own, governor kim reynolds, supporting the nomination of judge barrett. the third is a letter from tracy levitt, who was with judge barrett while they both served on the scotus clerk class of 1998. there is also an editorial by derek mueller, a professor of , and this professor had evidencerett as his professor at notre dame law school, and he does say that he treated that she treated all
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students of all backgrounds with respect. sen. graham: without objection. sen. ernst: judge barrett, i can pro-life. by youre that, judged faith, and has been apple pointed out many times by our colleagues across the aisle, that you are pro-life. but once again, can we reiterate your stance as a judge? myge barrett: as a judge, which i moral beliefs am not expecting them publicly right now, because now that i am a judge, i cannot sign statements like i did that 115 years ago, but my policy views, my moral convictions, my religious beliefs do not bear on how i decide cases, nor should they. it would be in conflict with my judicial oath. sen. ernst: and i know you
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consider yourself to be an originalist, as you discussed earlier with senator sasse. it seems that adhering to the naturallyt view would lead a judge to carry out her impartiality, and this takes real courage. the courage you have displayed lead to a coalition of groups a coalitiono send letter supporting your nomination. i would like to support this to the record. i know this will make a number of ambers on the committee very squeamish, because they are a pro-life organization. but, with this in mind, i want to take a moment to read part of this letter. has proven herself
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to handle disputes impartially, approaching cases as a textualist and originalist who loves the constitution. she is a jurist who rightly leaves politics to politicians and legislating to legislators. quite apart from whatever policy views she may have on the matter, judge barrett reasons to a proper result in each case before her. as a federal appellate dodge appropriately following controlling precedent, in 2019, she joined a panel decision upholding a law creating a buffer zone around abortion facilities. or bubble zone case being referred to is price versus the city of chicago. judge barrett, can you please give us an overview of the city ordinance that was challenged
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here and asked lane how precedent -- and explain how precedent established by the supreme court influenced your reasoning of the case? judge barrett: i was on a panel, there was a challenge to a bubble zone ordinance, which -- it limitedans where abortion protesters could go to do sidewalk counseling or , the activities they desired to undertake in the expression of speech outside the abortion clinics. the supreme court has a case, and that case is that such bubble zones, especially because this one in chicago was nearly identical, as i recall, with the one at stake, said that they did not violate the first amendment, so our panel, as we are bound by panelrecedent, our
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applied that precedent. my duty as a judge was to follow the governing law, and in that case, it was hill. sen. ernst: thank you for that clarification for it i think it was important to point that out, because in that case, you think thatdent, it did favor abortion clinic, is that correct? judge barrett: that is correct. sen. ernst: thank you very much. i would like to submit this to the record. thank you. now turning to a topic of agency rulemaking -- really sexy topic. [laughter] not something we have talked about as of yet. but as i mentioned yesterday, when congress makes laws that overstep the constitution, it can be felt all across the state of iowa, whether it is in the streets of council bluffs in the farm fields in clinton county, but congress is not the only body capable of overstep.
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agencies can be just as guilty of this, as we have seen in iowa. in 2018, as a judge on the seventh circuit, you helped decide a clean water act case, specifically orchard hill building company v. army corps of engineers. the decision found that the federal government did not provide enough evidence to justify its decision to deem 13 acres of illinois wetlands as a water of the u.s. i am very encouraged by how you approached this decision. farmers in iowa are also encouraged by this development. i believe then, as i do now, that the obama administration's clean water rule was unconstitutional, but i also want to talk to you about agency rulemaking that i believe was
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constitutional, which is that theed in a case 10th circuit court has recently ruled on, specifically renewable fuels association v. epa. at issue in this case were three exemptions the epa granted to oil companies allowing them to avoid their obligations to blend renewable fuel under the clean air act's renewable fuel standard. these oil refinery exemptions, which were not disclosed to the public, were challenged by renewable fuel producers, who said they only found out about the waivers because of investigative news reports. the 10th circuit concluded, in this case, that the renewable fuels producers were injured by and thus hadptions standing to sue. the court also found that the epa exceeded its statutory
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authority in granting those petitions, because the agency may only extend previously existing waivers. in the case of these three refiners, there was nothing to extend, because they had let their exemptions lapse. in other words, the three refineries had not received continuously extended exemptions in the years preceding their petitions, as required by the statute. but in the wake of this decision, small refineries flooded the epa with 67 petitions for retroactive waivers, some dating back as far as 2011, in an attempt to go back in time and establish a chain of continuously extended exemptions. also oil companies have appealed to the 10th circuit decision to the supreme court. so while i will not ask you to and what is of this going on, the problem here,
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bottom line, is that the epa was not following the law. they took the law that congress passed, they twisted it, and interpreted for the benefit of oil producers, and that harmed our iowa farmers. speak, again, you cannot on how you would rule on these cases, especially those that could be pending before the supreme court, but tell me -- how do agencies, how should they interpret the laws that are passed by congress? judge barrett: well i think the reviewing agency actulness is governed in an that governs the way in which agencies can do their business. there is also a document called chevron, named after a case, and many times, if we are talking about a chevron issue, we are
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talking about an issue of statutory interpretation. and when it court reviews whether an agency has exceeded its lawful authority, it goes to the statute that you, in congress, an act, and interprets that statute, looks at the text, and tries to tell whether you the given the agency, given epa, in your example, leeway to adopt policies, and that leeway would be present if you had ambiguity in the statute that left the decision to the agency, but if the agency goes further than the text that the statute permits, it is the role of the court to say that that action was in conflict with the statute, and therefore legal. sen. ernst: what happens, then, if there is an actual question on the intent of the law? judge barrett: well, statute, in this context, in the context of a chevron-type challenge to an
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agency's interpretation, you would interpret the statute in the same way you would any statute. my own approach to it would be textualism. so in my approach to language, the intent of the statute is best expressed through the words, so looking at what the words what -- would communicate to a skilled user of the language. sen. ernst: i appreciate it. we do have a little bit of time remaining. again, i want to thank you, i want to thank your family for lending their support to you through this process. i do have to say your temperament throughout the entire hearing has been truly commendable, so thank you so much. i look forward to working with you further. with that, mr. chair, i will reserve my time. sen. graham: thank you. judge, are you ok to do two more? senator booker, senator crapo,
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then we will take a 20 minute or so break to grab a bite to eat and finish up. sen. booker: thank you. i spoke yesterday, and i appreciate the attention you gave me talking about how this is not a normal time, and i want cogently as that as i can, because this is something like we have never seen before in the history of the united states. we are not just days away from election day, but people are actually voting right now. close to one million people in my state have already voted, and about 10 million people have voted nationally. the only other time a supreme court nomination hearing happened in this close to an election was, as you probably know, under president, who offer in nomination before the election. it is probably not normal, also, because people are already speaking in this election, and
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it seems like we are rushing through this process, when many of my colleagues in this committee said, just four years ago, that we should not proceed to fill a vacancy that opened 269 days before an election. in the words of some of my colleagues, including the chairman of a was to use our words against us, we would not do exactly what we are doing right now. it is also not normal, clearly, because we are in the middle of a pandemic, and we have tens of thousands of new covid infections every single day, widespread food insecurity like -- we have notn seen these kind of food lines in my lifetime. people across the country are struggling. unfortunately, we see we are, right now, not dealing with this crisis. we are instead literally having close the senate, virtually, and the only proceedings allowed to go forward are not issues of the struggling. it is not normal that we have a
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president who has repeatedly attacked the legitimacy of our institutions. so much so -- and i've never seen nothing like this in my lifetime -- that his former cabinet members all talk about the danger he represents to the country we all love. probably one of the most respect the person on both sides of the aisle, general mattis, went as far as to say that donald trump is a danger to our democracy. we are at a time that the legitimacy of our institutions are at stake. and it is not normal that the president would further cast a shadow over your nomination, as well as the independent of the court, by saying he would only nominate justices who would tear down roe v. wade, aca. this not normal at midst all. in we have a president who cannot, himself to the peaceful
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transfer of power. in the light of that abnormality, most americans think we should wait on your nomination. today, and i appreciate you not following the news, but 90 of your fellow faculty members from notre dame wrote an open letter calling on you, for the sake of our democracy -- they did not speak to whether you are right or left or your judicial philosophy or qualifications -- they wrote an impassioned letter for the sake of our democracy, publicly writing that you withdraw from this nomination process and have it be halted until after the november election. this is not normal. and again, the overwhelming majority of americans want to wait, but my colleagues here are not listening. and so i will ask you some questions that come if you had told me five years ago, would be questions asked to a supreme court nomination hearing, i would have thought they would
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not be possible. but unfortunately, i think they are necessary to ask you, and i hope you will give me direct answers. the first 1 -- you have already spoken towards issues of racism, how you deploy it, but i want to just ask you very simply, and i imagine you will give me a short, resolute answer, but you condemn white supremacy, correct? judge barrett: yes. sen. booker: thank you. i am glad to see you said that. i wish our president would say that so resolutely and unequivocally as well. we are at a time where americans are literally fearful because our president cannot do that in the resolute manner in which you did. i am sorry that question even had to be asked at this time. here is another one. do you believe that every president should make a commitment, unequivocally and resolutely, to the peaceful transfer of power? judge barrett: well, senator,
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me, to be, to pulling me in to this question of whether the president said that he would not peacefully -- to the except that this is a political controversy right now, as a judge, i do not want to express a view on -- sen. booker: i appreciate what you have set about affecting our founding fathers. it is remarkable we are in a place right now that this is becoming a question and a topic. what i i'm asking you in light of our founding fathers, in light of our traditions, in light of everyone who has sworn in both that they swear to preserve and protect and defend the constitution of the united states, i'm just asking you, should a president commit themselves like our founding fathers i think had the clear intention, like the grace that george washington showed to the peaceful transfer of power. is that something that
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presidents should be able to do? beauties ofe america from the beginning of the republic is that we have had peaceful transfers of power and that disappointed voters have accepted the new leaders that come into office and that is not true in every country and i think it is part of the genius of our constitution and the good faith and goodwill of the american people that we haven't had a situation that has arisen as so many other countries where there have been. >> thank you, your honor. do you think that the president has the power to pardon himself for any past or future crimes he may have committed against the united states of america? besenator booker, that would a legal question, that would be because additional question. in keeping with my obligation not to give previews to resolve the case, that is not one that i can answer. senator booker: i think i agree with you that it is an issue
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right now, but it is an issue. our president may intend to pardon himself for future crimes or past crimes. if the president is personally responsible for several hundred million dollars of debt while he is in office, potentially to foreign entities, do you think he has a responsibility to disclose who his lenders are, especially given the emoluments clause? judge barrett: senator, there's litigation about the emoluments clause, i don't know where it stands, but that clearly is an issue being litigated and one present in court is not one on which i can offer an opinion. >> thank you, i think it is disturbing that we are having this conversation. i think it is disturbing that we not a president that has revealed what their debts are, especially if they are to foreign nation. presidents should not be able to
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pardon themselves for future crimes, presidents should condemn white supremacy, presidents should commit themselves to the peaceful transfer of power. have seen in, you a lot of my colleagues and i put up pictures of people in this room, stories we told, and i've appreciated the way you have listened. it is not a stretch to understand why a lot of americans are free right now. all we have to do is look at the statements, actions of my republican colleagues, republican party platform, and the president who nominated you. and even some of your own words that you can read by my previous for thees around the of care act. president trump nominated you for this vacancy by explicitly stating the supreme court to overturn the affordable care act, but he promised that he would nominate a judge who would "do the right thing and like john roberts on obamacare." the president has tried to do this legislatively,
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administratively, he has failed but he has promised to tear down the portable care act. meanwhile, all of my republican colleagues on this committee except for one has voted to overturn the affordable care act. house and senate republicans have tried to do it 70 times. the one republican who did not with the attorney general who joined 20 attorney general to sued.- who you yourself said that chief justice roberts pushed the affordable care act beyond its plausible meaning in statute. chief justice roberts imply that trump did not do the right thing. you have said that if you were on the court, you will hear and consider the arguments from both sides. interestedlly very when you said that you put your family members in the shoes of litigants on both sides. over all that you've heard and over again about the
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intentions to tear away the affordable care act, given what you have heard about the people who rely on it, given the commitment you know that president trump said explicitly that he will only appoint a judge who would overturn the aca, is it unreasonable for people to fear putting yourself in the shoes of the people, is it unreasonable for the people who have been up here to fear that the aca would be overturned if you were confirmed to the court? i wantarrett: senator, to stress to you, senator booker, as i have stressed some of your colleagues today that i am my own person, i am independent under article three and i don't take orders from the executive branch or the legislative branch. sen booker: i understand. can i restate my question? i'm not asking you as an active empathy,, can you understand the fears that are exhibited by the
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people? the two people i put up, michelle and merrick, i don't know what their political party is, i don't know if they are going to vote for me. i just know that they were people who wanted their voices to be heard because they are afraid right now of what the nomination represents. all i'm asking, can you understand that? judge barrett: senator, i can certainly empathize with people who are struggling and i can empathize with people who lack health care. one of the things that was so striking to me when we went to get her daughter vivian from the orphanage in haiti was the lack of access to basic things like antibiotics, and it just made me appreciate the fact that we had access to health care, so i can certainly empathize with all of that. aca,ith respect to the should i be confirmed and as i said, i would consider the issue of recusal a threshold question of law, but should i be
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confirmed and should i sit and hear the case, as i assure you, i would consider all the arguments on both sides and one of the important issues in that case is whether, even if the mandate has been unconstitutional since it was zero out, whether it would be consistent with the will of congress for the statutory question on a constitutional one, or whether the mandate could be severed out and the rest of the act stand. the job of every justice who looks of this case will be to look at the structure of the statute and look at the text to determine whether it was the will of congress -- sen booker: i apologize, especially after the good behavior that was noted that we shouldn't be talking over each other, my time is running quickly. just, as a guy who looks at justices, i was just asking you to express that you
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understand the fear that is in america right now because you've heard story after story of people who don't know if they are going to be able to afford their health care, who don't know if they will be denied insurance coverage. i'm going to move on because of the short time but i was just asking you, can you understand the fear, giving a president that has said that they will put a justice on that will tear down the affordable care act, taking away health care for millions of americans, there is fear in our country right now. i want to move earlier to what senator durbin and you discussed, about racism in the role of courts and addressing racial justice. i was troubled that you said that racial justice, and i will quote you, how to tackle the issue of making it better, those things are policy questions, i think that is the quote. how to tackle the issue of making it better, the racial injustice, those things are policy questions. and not for the court.
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the federal government's own data, and i think you and i referenced this in her other conversation which i appreciate, you said you were familiar with a lot of the data about the discrimination in our criminal justice system. the u.s. census commission shows are more likely to charge black defendants with mandatory minimum sentences than black or white. judge barrett: i'm not familiar with that particular census. sen booker: does that surprise you? mean, i don't i know, senator booker, that seems an odd thing for me to express an opinion on. sen booker: these are just facts. judge barrett: i'm not familiar with that study. i am aware that there is evidence and that there have been studies of implicit bias in the justice system, so i am aware of that issue. sen booker: you are aware of evidence that there is implicit racial bias?
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judge barrett: i am aware that there have been studies showing that implicit bias is present in many contexts including in the criminal justice system. sen booker: ok. i'm just going to read some of these other statistics because i think they are really important and this is independent data from the u.s. census commission of black defendants compared with similarly situated white defendants. on average, they added 10 years to sentences. you are not familiar with that study. judge barrett: i am not familiar with that study. sen booker: have such cases come for the seventh circuit? judge barrett: three strikes cases? um, are you talking about the three strikes, the prison litigation reform act? sen booker: cases in the criminal justice system that relate to criminal bias -- racial bias. judge barrett: certainly we have discrimination cases, there are title vii cases. sen booker: i would imagine so. in your research for those cases, you familiarize yourself with a lot of data on the
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discriminations in the system. judge barrett: we familiarize ourselves with the arguments the parties make and the information they put in the record. submit to theties district court. sen booker: i just want to be clear, do you believe that there is, in fact, implicit racial bias in the criminal justice system? yes or no question, do you believe that there is implicit racial bias in the criminal justice system? judge barrett: senator, it would be hard to imagine the criminal justice system as big as ours not having any implicit bias in it. sen booker: so is that a yes? idge barrett: senator, yes, think that in our large criminal justice system, it would be inconceivable that there wasn't some implicit bias. sen booker: ok. over the last two years, 121 of president trump judicial nominees to federal court has said unequivocally that there is implicit racial bias within the justice system, quite clearly.
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i like to turn to an opinion last year about race discrimination with the illinois department of transportation. the case involved an african-american traffic control officer who had been fired from the illinois department of transportation. this employee claims he had been subjected to hostile work environment's and that the supervisor called him the n-word. you told about the employee had failed to make the case that he had been fired in retaliation for his complaints about race discrimination. quote, acknowledge that the n-word is an egregious racial epithet, but you went on to insist that the employee couldn't "win simply by proving that the n-word was uttered at him and that he failed to show that his supervisors use of the n-word against them altered the conditions of his employment and created a hostile or abusive working environment."
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and you said that even they on his own subjective experience, this black employee had no evidence that his supervisors were lashing out at him because he was black. to have torprised make this point at all, but even a staunch conservative like justice kavanaugh in my questioning of him spoke to the obvious harm here in a way that you don't seem to. he wrote the court of appeals case that "he called the n-word by a supervisor suffices by itself to establish a racially hostile work environment." you disagree with that. why do you believe that the law recognizes the harm that is inflicted on a black person in this country when they are called that word by their work supervisor or anyone, for that matter, and all the history dredged up in that word? centuries of harm. why do you believe differently than justice capital?? -- justice kavanaugh?
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judge barrett: that opinion does not take an opinion different than justice kavanagh, it very carefully leaves open the possibility that one use of the word would not be sufficient to make a hostile work environment claim. thatat case, the evidence the plaintiffs had relied on to establish the hostile work involved he was driving the wrong way down a ramp and the next lives were used, not the n-word. the n-word was used after his begun,tion had already and he didn't argue under clear supreme court precedent, i didn't make up the development, under clear supreme court precedent, both are required. he didn't say that it altered the terms, that is not how he made his case and it was a unanimous decision. sen booker: forgive me if i'm reading this case wrong, but you're saying to me he was not planning to be in a hostile work avironment and that it is pattern that supervisor called in the n-word and that does not
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constitute a hostile work environment and the way the justice kavanaugh said clearly that it does? judge barrett: i think you are mischaracterizing what i said with all respect. in that opinion, the evidence that he introduced to show the hostile work environment was the use of expletives when he drove the wrong way down. he was a safety driver for the illinois department of on hisrtation, and based hostile work environment claim on the use of expletives at him based on performance. and is what he relied upon then the termination proceedings had begun. he didn't hide the use of the n-word into the evidence that he introduced for a hostile work environment claim and so as a panel, we were constrained to decide based on the case the plaintiff had presented before us. the panel very carefully wrote the opinion to make clear that it was possible for one use of the n-word to be enough to establish a hostile work environment claim if it were
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pledged that way. --led -- pled that way. sen booker: you were not a part of the initial panel, but you did have the opportunity to vote on whether the case was before the entire court. you had an opportunity to affirm the bedrock principle enshrined in brown v. board of education, to say that separate is inherently unequal. but you voted no, you didn't think the full court to examine this deliberate segregation of employees by race. but judges on the court disagreed with you. in fact, three judges explained we know that "the liberal -- deliberate racial segregation has an adverse effect on the people subject to it." on one of the essential teachings of brown versus the board of education which i know you're familiar with, is that idea of separate being inherently unequal. why do you think that the separate but equal facilities were lawful, or why didn't you
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see this as a practice that was worthy of closer scrutiny? judge barrett: senator, as i said earlier, i did not make a merits decision on that case and i was not on the initial panel. the calculation is different than a merits position. decision reaching any about whether title vii applied to that situation or not. federal rules and procedure governs en banc proceedings set that standards and this case would create an inter-circuit conflict. --idn't think it met federal all my vote means is that i did not feel like it satisfied the elevated high standard for review, not that i thought it was correct. sen booker: right, but three judges disagree with you. judges appointed by republicans and democratic presidents.
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found that case about separate but equal really compelling. you had the opportunity to join them, but you didn't. you referred earlier to the problem of implicit racial bias in our system. despite the color of their skin, people can get a hearing, people can get justice. this denial seems to me that you disagreed with the prioritization, at least, of your three college. ofge barrett: senator, eight my colleagues chose not to take the case en banc in the process is a different one than the merit-based process. to know whether it would cut off the same way, i would have had to participate in it and hear the arguments. sen booker: so the three justices were wrong and you disagree with your colleagues. judge barrett: the three judges who dissented, my three colleagues whom i respect very much, thought that it met the standard for en banc review. that is a different question than the merits, so i did
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disagree with them. group of aa colleague that decided that maybe that would be an issue we could take up in the future, but not to disturb the panel decision then. that is not a merits determination. sen booker: thank you, your honor. moving quickly. five years ago, the supreme court ruled that the constitution could protect the rights of same-sex couples to marry. this was the case which has been discussed today. equal dignity in the eyes of the law, hundreds of thousands of couples have built their lives on this decision. i have married some of them myself. the courts fill that idea of equal justice under the law. now, same-sex marriage is legal. we've seen efforts to try to undermine that decision. out legalnsburg ruled rules that would "create two kinds of marriage, full marriage and skim milk marriage." i firmly believe that our laws should not allow discrimination against people on the basis of who they are. i have a number of questions on
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this topic, but i wanted to offer you a further opportunity to address the issue that i don't think you got to fully address that my colleague brought up. term sexual preference earlier today rather than sexual orientation. is there a difference, and what is it? judge barrett: using that word i did not mean to imply that i ofnk that it is not a matter -- that it is not an immutable characteristic, i honestly did not mean any offense or to make a statement by that. sen booker: but you understand about that immutable characteristic. in other words, that one's sexuality is not a preference, it is who they are. is that what you're saying? judge barrett: i'm saying i was not trying to make any comments on it. i fully respect the rights of the lgbt community. it follows an important precedent of the court. i reject any kind of discrimination on any sort of basis. sen booker: what about your two
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colleagues -- forgive me. thomas whoalito and have said that the court has created a problem that only it can fix? they clearly don't see that as a precedent worth following. judge barrett: i said over a felt is a precedent, it is an important precedent, as you pointed out. there are relying interests as to why justices alito and thomas called for an overruling in the recent opinion that the issue. i can't really speak to it. sen booker: they called it a problem, do you know what they are offering to? judge barrett: i don't know what justices thomas and alito were thinking, you would have to ask them. sen booker: we are now seeing cases where americans are being denied equal access. one thing that the couple in arizona was together for 43 years, got married, but one of them died six months later. surviving spouses being
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denied benefits because they were not nearly long enough after 43 years together. the rule ofolate equal treatment that the supreme court has laid down? could you repeat the facts of this? were togetherey for 43 years, the law changed and allow them to marry. they aresoon after and being denied survivor benefits because they were not married long enough to get the law that denied them in quality. adge barrett: that would be legal question that would have to be decided in the context of a real case. the case recognizes the full right of same-sex couples to marry. sen booker: but there are some presidents. can a hairdresser refused to serve interracial couple's wedding because they disapprove of interracial marriages? judge barrett: -- versus virginia follows directly from brown and it makes
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unconstitutional any attempt to forbid interracial marriage. sen booker: could they refuse to serve a black couples letting? judge barrett: could a baker or vii prohibitsitle any sort of discrimination on the basis of race. places of public accommodation. sen booker: how about interfaith wedding? judge barrett: i feel like you are taking me down a road of hypotheticals that is going to get me into trouble here because as you know, i can't opine on how cases would be resolved whether they are easy questions or hard questions. i can't do that. sen booker: so i'm not the lawyer that you are but you seem to honor the precedents that is enough to protect discrimination against african americans, interracial couples, but you stop on saying that unequivocally about people stopping religious discrimination against a muslim couple's wedding or interfaith wedding. judge barrett: what title vii says as i'm sure you know is
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title vii prohibits discrimination on the basis of race, on the basis of sex. all i can do is say refer to the statute. but of course, as to whether there would be evidence to show or whether any particular encounter between a customer and a florist or a baker violated title vii, that would be a case that would have to come up as i discussed. with real litigants litigated on a full record. if you are asking a series of hypotheticals. sen booker: i'm assuming that you will not respond for the same reasons you have uttered before, you would not respond about whether a florist can refuse to serve a same-sex couple. judge barrett: it sounds like you are on your way to talking about masterpiece cake shops and some of the cases that are very hotly contested and winding their way through the courts. i want to make sure i am not in a position that i am soliciting any views on litigation.
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sen booker: you can understand if we go back to the question that both i and senator -- ask you about, you said you didn't mean to offend about whether it is a choice or not. these are the characteristics of the individual, like their race. i just want to close by saying that the stories some folks in my home community of new jersey, emily and jan, they've been together for 51 years, they've raised three children at last count and i think that is really putting it -- they had 18 grandchildren and 20 great-grandchildren. you know how families are. but for a long time they had to keep the relationship a secret. marriage became legal, they got married and thanks to the supreme court decision of obergefell they can now enjoy their full rights. judge barrett, you are asking the senate to agree to any replace justice ginsburg which
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would tilt the balance of the court further to the right. remember that it was justice ginsburg who warned against full marriage for some couples and skim milk marriage for others. couples in my state of new jersey and around the country, emily, jan, are worried about what might happen if the supreme court starts to peel back some of their hard-fought rights. they believe that their love should be valued by the as theent as equally love of any other people and they believe that a lot of the rights that they now enjoy which were denied in the past two african-americans, even, they believe that they should be able to preserve them. my time has expired, you've been very generous as has the chairman of allowing me to go over. i'm grateful to have the opportunity to talk to you more tomorrow. judge barrett: thank you, senator booker. we will take a break for supper i think. >> thank you, mr. chairman. we are four away from the finish
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today. before i begin, i do have a couple of letters i would like to submit from the record. one from the speaker of the idaho palace in support of judge barrett's nomination, and the other from the national shooting sports foundation also in support of the nomination, mr. chairman. >> thank you. i will get you some new material, but a lot of what i do at the beginning will be going over things you've already said and you must think you have said them way too many times. be sure thatjust begin some things nailed down once more. before i do that, there has been a lot said today that really needs to be responded to. you,won't be a question to i'm just going to quickly respond to a couple of them. the first was one of my colleagues, senator whitehouse, spent a long presentation trying to make the case that there is a lot of dark money out there
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trying to control the supreme court nominations and this whole process and the situation that we face today. i just want to set the record straight, these are actually some statistics that senator cruz quickly went through when he spoke. there is dark money in politics and i think that we should get it out. is money where you don't know who the real donors are behind the entity that is making the expenditure. fortunately, we are getting a lot about out, but there is still a lot out there. the impression that was left was that the start money is all on one side. the reality is if you look at open secrets, this data is from 2016 but the same data even into 2018 and it is the same kind of statistics, and that is that really, the significant majority of the dark money is being spent in favor of the democratic side rather than the republican side.
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of the top 20 organizations and individuals that they identify who contribute to super pacs who then utilize the money in a way that was talked about, 14 of them gets exclusively to democrats. the top 10 on that list, only two give to republicans. and the totals, by the way, ford and $22 million in this report going to democrats, $189 million going to republicans. so there is money in the system, which we can't -- a lot of this money, by the way, is going against you, judge barrett, but we can't give it all out yet. with not try to create the impression that this is just some one-sided circumstance that is happening in the country. the other thing i want to go over first before i get into my questions is the same thing i went over yesterday, because the allegations have been made again and again and again, that somehow we are rushing this case and somehow we are violating the history and the precedent of the
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way the senate operates and the way the presidency operates when there is a vacancy in an election year. some people count these things differently. there is a statistic that i will use that will count all vacancies that have happened, whether the vacancy occurred in the election year or whether it just didn't get resolved until the election year. but it doesn't matter whether you just take the one that are within the election year or you take all of them that will result in the election year. the precedent is the same, it is overwhelming. in every single case, the sitting president made a nomination. every case. which theases in senate was of the same party as the president, i'm going to use one for all of the nominations that actually were dealt with in an election year, there were 29, 19 of them were when the party
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was the same as the president. 17 of those 19, the party moved ahead with the president's nomination and the nomination was confirmed. times, it was when the party was not the party of the president. cases, the party that was not the party of the president declined to move forward until the next president was elected. that is the precedent of the senate, that is what happened in 2016 when the senate was of a different party than the president, and it is what is happening now when the senate is the party of the president. those are the facts, and that is the president. -- precedent. there's a bunch of members of the supreme court whose nomination hearings started sooner than that, including ruth bader ginsburg. so, the fact is that normal
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procedures, appropriate timing, and appropriate policy and precedent is being followed here as we move forward. having made those points once again, i would get into some new questions for you, but i'm going to go over a lot of things that you've already talked about because i really think it's important that we just make it as clear as possible. you talk about original is an and textualism. is there a difference between those things? judge barrett: they are the same basic approach, but we use originalism mostly to refer to interpreting the constitutional text, and textualism to infer to interpreting statutory text. but they both involve the same principles, which is that one comes to the law and interprets it as it would have been understood by those at the time of its ratification in the case of the constitution or its enactment in the case of a statute and that the longer
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remains the law until it is changed through democratic processes. >> thank you. i assume you would consider yourself both originalis and a textualtist. judge barrett: i do. >> and you have written quite a cedent.ut pre maybe you could make a distinction about the appellate level in the supreme court level. judge barrett: there's two kinds of starry decisiveness. there's horizontal, the supreme court's obligation to follow its her iscdenet, and vertical, my obligation right now on the seventh circuit falls precedent. vertical, there is no question. the supreme court judge sets the precedent. , forontal precedent example, on my own court right now, the court that renders a
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president does have the ability to reconsider it under certain circumstances. otherwise, plessy versus ferguson would still be the law of the land. >> tell me, what are the rules there when you do horizontal reevaluation? judge barrett: when a court decides whether or not to overrule a precedent, it considers first of all, is it wrong? and how egregiously wrong is it? as we can see in brown v. board of education, that factor place. before, stand by the thing decided and don't disturb the calm so cordial recklessly get in the business of just stirring up people's lives unless the other factor is in favor of doing it. you consider whether the law has developed in a way that
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undercuts the foundation of the precedent itself, same for the facts. you also consider whether the precedent that you have set has proved to be workable for the court below you that must follow it. that would mean the district court. have we set out an articulation of the law indicates that lower courts can actually use. >> to paraphrase, if a judge a horizontal situation, either a supreme court justice and i wouldn't supreme court precedent or a circuit court judge evaluating the circuit court precedent, if they felt the precedent was wrong, that is not enough. judge barrett: that is not enough. >> you have to have the reliance and the other factors all falling into the right circumstance before a decision to actually overrule or overturn a precedent is made.
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judge barrett: that's true, and this might be a good time for me to make one other point about horizontal doctrines. i can't remember which interchange it was, someone was pointing out that i said they should have weaker effects on constitutional cases. that's actually what the supreme court has said, that is a well-established principle of decisis. you can always step in and fix anything that the court might make, but the court itself has expressly said that it gives .eaker stare decisis i just want to be clear that there is simply a restatement of the court's own doctrine, that was not something i invented. >> you also mentioned earlier that there are some super precedents? judge barrett: i can't remember how many, but as i said, it is
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in constitutional law, there are some precedents that scholars have identified as utterly beyond question that no serious person ever calls for their overruling. >> i think brown v. board of education would be one of those? judge barrett: marbury versus madison which establishes the power of judicial review. let's see. me toprobably easier for just identify what the precedent stands for. judicial review. the power of the supreme court to refuse judgments in state courts. the proposition that a 14th amendment applies only to state action. the incorporation of the fourth amendment and by implication, the other bills of rights against the state. so they are mostly structural and foundational principles, no one seriously challenges them anymore.
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>> i appreciate that, i think that is very helpful. in this hearing, you've been asked about at least three very significant supreme court precedents and you've been asked whether you were asked to commit to overturn them or whether you even had conversations with the president or his staff about them. i just want you to give your answer, because i want this to be very clear. you had any have conversations with the president or with the white house staff, white house counsel, anyone, and have you make any commitments about how you would rule on any case dealing with that? judge barrett: i have not. >> thank you. and the same set of questions i have not had any conversation with anyone in the white house about my views on it or how i would rule. >> california the texas? -- california v. texas?
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judge barrett: no conversations at all. >> you earlier testified that there is a difference between judicial decision-making and the process of making a judicial decision reverses the process you would make as a professor when writing an article or what have you. can you quickly get into that with me? judge barrett: a professor when writing law review articles, they are doing academic critique. it is kind of at a 10,000 foot level. you are not in the trenches like a judge is because you are not deciding it in the context of a real case with real litigants inside of you. the adversarial process where you have people on either side, where you hear arguments and you consult with your colleagues and you write your opinions. i think one thing is worth pointing out about the judicial process, that i have had the experience of changing my mind at various points along the way. i've gone into oral argument more than once thinking i was going to roll one way and that argument changed my mind.
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my colleagues have changed my mind. i have even changed my mind, and this is not uncommon on the court, once i started writing an opinion. judges say "it won't write" which means what you thought was right you realize actually didn't really work out. i think that process and the fact that judges keep an open mind all the way through is evidence of how the judicial process really is unique in our system. it is a different enterprise than academic critiques. >> i've been able to observe that a little bit, i clerked on the ninth circuit. i've been able to observe that exact process in each of those steps that you talked about taking place, and you are right, that is how it happens. more i want to go to one specific kind of process-type thing to make sure we all understand it, and that is the recusal. interestingly, you've been asked by my colleagues on the other
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side to assure that you have made no commitments about case law, but that to give a commitment on recusal. you have said that there is a process for recusal as well and that you would all of it. could you please lay that out once again? judge barrett: recusal is the question of law because 28-usb-455 actually obligates the judge to recuse in certain cases of actual bias or apparent bias and there are supreme court precedents interpreting the range of a judge's obligations under that statute. there are also professional conduct committee's to consult and i think collaboration and consultation, as i've said before, with other justices, is a difficult practice according to justice and the description of it. so it is a legal question that is governed by statute and precedent so it is not one i can make an advanced resolution of. >> thank you. now i want to move to, frankly, texas.o california v.
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and the pre-existing conditions issue that has been raised by a number of my colleagues here. we've heard a lot about the affordable care act yesterday and today. on the finance committee as well as the judiciary committee, so this is an issue i really care about him off and i am passionate about ensuring that all individuals have affordable quality health care coverage and making sure that they have coverage for their pre-existing conditions is especially important. regardless of what one thinks about the obamacare legislation, reasonable people can disagree about the totality and the success of obamacare and this is something that i think should be remembered. that many of the policies in obamacare were policies on which we had agreement. between republicans and democrats as we move forward trying to craft a health care law.
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people may recall this was being negotiated in the finance committee for quite a while before president obama hold us back in and brought his own statute out. one of the things that we had agreement on was protecting pre-existing conditions back then. there was no fight over that. in fact, i think every singer u.s. senator wants to protect access to coverage for patients with pre-existing conditions. republican and democrat. so, here we are now, talking about the obamacare legislation that was pushed through the senate when there was a senate and a president of the same party and the ability to filibuster. we are now looking at legislation challenging one part of that. again, you've talked about this, but i would like to just set up this next question. there is a difference between nfib versus the case which you have made some commentary on, and texas v. california. could you tell me the
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difference? judge barrett: yes, nfib involves whether the mandate violated -- it was framed initially as a case about whether the mandate violated the commerce clause. and the majority in that case as we discussed earlier, interpreted the mandate provision to be a tax rather than a penalty and chief justice roberts said that he thought it was justified as an exerciseof xing power.ta now, the new case that the supreme court is going to hear involves a different question, if the mandate which has now been zeroed out, the initial ifstion does resemble something is taxed, is it zero dollars -- if it is not a tax, can it be justified under congress' taxing power?
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severability, even assuming that it is no longer a tax because it is zeroed out, the next question is if that provision is unconstitutional, does that provision become inactive, so to speak? or does the whole statute fall? that is a question of severability. whether oneects, thought that the mandate was unconstitutional or not, that would have to be on severable. >> you may not know the answer to this, but i believe that in the last session of the supreme court, seven members of the court said that there was a very strong presumption against -- in favor of severability rather than knocking down an entire statute. >> that is true, it was reiterated in the last term. mootd you participate in a court case on this last month? or in the near future?
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can you tell us what a moot court case is? judge barrett: william and mary law school has ever year what it calls its supreme court preview and it includes a moot court case. there is a long tradition of exercises at law schools. sometimes they're called mock trails, sometimes they're called mood court, that is when they are appellate. it is a chance to educate the community around the law school, or in the case of this program, it also draws in people from around williamsburg so that they can see how the judicial process works. >> and judges often participate, right? judge barrett: judges often participate and in this particular one, comprising the panel, the conference involved several others, but this one involved a panel that was supposed to be a mock argument for this case about four judges, a couple law professors, and some journalists who were on the
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panel with advocates slicing out the case so that students could see how the process might look. sen crapo: and so, what did the court decide? judge barrett: well, i do want to preface this by saying it was an educational exercise. sen crapo: i understand. judge barrett: it was made very clear to the audience both at the outset and in the deliberation room and outside that this was not designed to reflect the actual views of any of the participants. this wouldt, because show up, diving deep down, and a lot of times people change their votes in the deliberation room just for the sake of making it interesting. sen crapo: i appreciate you making that distinction. the vote was in the panel, the majority said that the mandate was now a
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penalty and was unconstitutional, but severable. i think there was also a group and a minority who said there was no standing. to be honest, i can't remember. i could be wrong about this, i feel like there is maybe another minority that said it wasn't unconstitutional. sen crapo: and how did you vote? judge barrett: i voted to say it was unconstitutional but severable. sen crapo: so you voted in favor, the one clue as to your thoughts we might have on the issue even though this was just a nexus size and you do not have the whole case presented. i will just say to the viewers, the one clue we have is your ruling in this moot court case and i think that is kind of an answer, frankly, to a lot of those who raising the specter that you are going to try to take the whole affordable care act away from everyone because of this very narrow case that is in front of the supreme court. judge barrett: i do want to be
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very clear, for the record, that it wasn't designed to reflect my actual views. to the extent that people think i might have been signaling to the president or anyone else what my views on the affordable care act are, they couldn't have taken any signals from that, certainly. i wasn't trying to signal anything because it was a mock exercise. sen crapo: it was a mock case, i understand that. very much. let me just go into a couple of other issues here. in fact, i can do them very fast. caseor ernst mentioned a on the waters of the united states. that was a big deal in idaho and frankly, in most of the western united dates, most of the entire united states. appreciated your ruling and i'm just going to tell you, i'm not going to ask you a question about it, i appreciated your ruling. i am going to ask you a question
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about the chevron doctrine. this is one of those you may not be able to respond to, but did you tell me what the chevron doctrine is? judge barrett: i got into this a little bit with senator ernst. the chevron doctrine is the doctrine that when a statute is cleared than that of the end of the case but if congress passes a statute that is getting an agency authority or that is describing the boundaries of an agency's authority, when there is ambiguity in that statute, then the court will treat that ambiguity as a delegation to the statute, a delegation to the agency. sen crapo: and i will just tell you, i disagree with that doctrine. i think that the courts ought to have the ability to interpret the statute and if it is ambiguous, they should interpret it as best they can and the interpreter in our system should not be the agency that is enforcing the statute. i think the courts should oversee that. that is just my opinion. the question that you probably can't answer is what is your
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opinion? judge barrett: you are right, i can't answer. sen crapo: ok. well, thank you very much. another couple of quick questions. i was going to go into the case. i will ask you, tell me, what do you believe the basic ruling of heller is? judge barrett: the basic ruling is that the second amendment protects an individual right to bear arms in self-defense. sen crapo: so if i were to characterize it that it reaffirmed the right to bear arms is one of the rights guaranteed in the bill of rights, to individuals? judge barrett: that is what heller held. i do have a number of additional questions which were just kind of softballs. judge barrett: i like softballs. sen crapo: maybe you deserve softballs right now but think instead, i will give you a break. you can have the last five minutes of my time or we can be
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done five minutes sooner. thank you very much for being willing to do this. you are an outstanding nominee and i'm very glad to be able to support you. judge barrett: thank you, senator. with that goodwill in mind, we will break and we will come back at 6:50. that will give us a few minutes to grab a bite.
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>> if you missed any of the hearing for judge amy coney barrett, head to our website to watch the hearing in its entirety or search for portions of interest. also on today's washington journal, we get your reaction the confirmation process. washington journal is live every day at 7:00 a.m. eastern. following washington journal, our coverage of judge barrett's confirmation hearing resumes with the nominee taking additional questions from committee members who in their second round each have up to 20 minutes. that gets underway at 9:00 a.m. eastern. you can also listen live on our free radio app. supreme court nominee judge amy coney barrett returns to the capital today for the third day of confirmation hearings as senators continue rounds of
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questioning. >> do you agree with this particular point of justice scalia's view that the u.s. constitution does not afford gay people the fundamental right to marry? >> my colleagues are asking you to recuse yourself from litigation around the affordable care act. regardinge precedent the affordable care act? >> watch live coverage today at 9:00 a.m. eastern on c-span, stream or on-demand at, or listen live on the c-span radio app. ♪ c-span, yourtching unfiltered view of government. created by america's cable television companies as a public service and brought to you by your television provider. now, more from day two of


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