Skip to main content

tv   Part 4 Supreme Court Nominee Amy Coney Barrett Confirmation Hearing - Day 2  CSPAN  October 14, 2020 4:54am-6:22am EDT

4:54 am
>> 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 c-span.org, 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 judge amy coney barrett's
4:55 am
confirmation hearings. this portion included hearings from senators kamala harris, john kennedy and marsha blackburn.
4:56 am
4:57 am
>> i apologize. senator harris, is she available? harris. there you are. we see you. can you say something? can you hear me, senator? sen: harris: yes i can. >> great. the floor is yours. sen: harris: thank you. i want to extend greetings to judge barrett. i look forward to our conversation this evening. judge barrett: thank you, senator. sen: harris: before i begin, i want to take a moment to talk directly to the american people. about where we are and how we got here.
4:58 am
we are in the middle of a deadly pandemic that has hit our country harder than any other country in the world. more than 215,000 of our fellow americans have died. millions more, including the president, republican members of this committee, and more than 100 front-line workers here at the capitol complex have been infected. this pandemic has led to a crash, causingic millions of workers to lose their jobs without warning. 12 million americans have lost their employer-based health insurance. believes --trongly needs to be laser focused on the american people to help you get through this pandemic. to do so, the senate urgently needs to pass critical financial relief for those who are
4:59 am
struggling because of this pandemic and many are struggling. people need help. they need help to pay their rent or mortgage. parents need help putting food on the table. the millions of american workers who have lost their jobs need help making it through the end of the month. small businesses need help so they don't have to close their doors for good. sadly, senate republicans have rushed to hold the supreme court confirmation hearing rather than help those who are suffering in a public health crisis not of their making. as i said yesterday, these priorities are not the american people's priorities. signed thedent obama affordable care act into law, senate republicans' number one priority has been to tear it down.
5:00 am
companies aca insured had unchecked power over our health care system. they could refuse to cover basic medical expenses like maternity care, mammograms, perception drugs, hospital stays. worst of all, if you were sick, they could deny you coverage altogether and there was nothing you could do about it. for the last nine years, republicans in congress have tried 70 times, 70 times to aca inor rollback the the united states congress. in 2013, senate republicans were so desperate to stop at success that they shut down the entire government for weeks. after president trump was elected, washington republicans spent nearly a year trying to repeal the aca. i will always remember the
5:01 am
thousands of americans from all over our country and all walks of life who crowded into the halls of the united states capital to require that lawmakers see their faces and understand how they would be hurt if there was a repeal of the affordable care act. brave activists in the disability community staged sit ins on the hill. seniors protested to keep prescription drugs affordable. mothers and fathers walked the halls with their children in strollers to show congress the face of those who depended on the law. doctors and nurses protested to protect their patients access to the care they desperately need. together with many of my colleagues, i joined civil rights and community leaders to speak to the thousands of people who gathered outside the capital and pleaded as they begged with
5:02 am
lawmakers to do the right thing. americansse dedicated demanding that their voices be heard and they made a difference. they made a difference. history will remember that when thet movement great john mccain denied republicans the opportunity to repeal the affordable care act. now, following a decade of failure, washington republicans have realized that the affordable care act is working too well and helping to many people to repeal it without facing serious political consequences. what are they doing? ,fter suffering the backlash they decided instead to circumvent voters and try to strike down the affordable care
5:03 am
act through the courts. right now, the trump administration and senate republicans are urging the supreme court to strike down the entire affordable care act and all of its patient protections. republicans are planning to confirm this nominee as fast as possible because they need one more trump judge on the bench before november 10 to win and strike down the entire overlook care act. -- affordable care act. this is not a hypothetical situation. this is happening. here's what you have to know. people are scared. people are scared of what will happen if the affordable care act is destroyed. in the middle of a pandemic. there are more than 100 million americans with pre-existing conditions like asthma and diabetes, heart disease who know they could be denied coverage or
5:04 am
charged more by insurance companies if donald trump is successful in getting rid of the affordable care act. because of the coronavirus, more than 7 million people have now a pre-existing condition that they didn't have earlier this year. those who depend on the aca are afraid of their lives being turned upside down if the court strikes it down. they know what could happen. i will share with you and the american people the list. no protections for pre-existing conditions. higher costs for health care for women. and people over the age of 50. young adults kicked off of their parents insurance. more expensive prescription drugs for seniors. insurance companies refusing to cover mental health care. insurance companies refusing to cover maternity care. no free mammograms, cancer
5:05 am
screenings, or birth control. insurance companies reinstating annual and lifetime caps. more than 20 million americans losing insurance at the worst possible time, in the midst of a pandemic, including nearly 2 northn texans, 607,000 carolinians, 288,000 south islands,ns, 227,000 and 4.2 million californians. the pain of losing these protections would disproportionately be felt among the 9 million african-americans, latino, asian, and native americans who gain coverage under the affordable care act. this isn't about statistics. this is about millions of real , whoe living real lives deserve their government and its institutions to see them and to
5:06 am
keep them close. i know a republican member of this committee said earlier today that the people who will lose health care are somehow not relevant to this hearing. i disagree. people is supposed to be why we are all here. why we all ran for office in the first place. i'm here to fight for people like fareed -- felicia perez. this is her. felicia is a writer, a public speaker, a former high school teacher in southern california who now teaches at the university of nevada. she has multiple pre-existing conditions including arthritis, asthma, and a rare autoimmune tumorer that has a wrapped around part of her brain. periodicdepends on cancer fighting treatments that cost $460,000 a year.
5:07 am
felicia is terrified. she knows that without the affordable care act, she could not afford ongoing treatment. the treatment she needs to stay alive. here's exactly what she said. my life is in the hands of people i do not know, who do not know me, who are essentially telling me i don't matter. that my life doesn't matter. that my health doesn't matter. that the day-to-day quality of my life doesn't matter. that's really hard. tragically, felicia's story is not unique. her fears are shared by millions of americans. the affordable care act and its protections hinge on the supreme court and the outcome of this hearing. election, president trump promised that every just as he put forward will do the
5:08 am
right thing, unlike bush's appointee on obamacare. merrick, 18 months later, you criticized the chief judges for upholding the a portable care act -- a character. -- affordable care act. monthstion is, how many after you publish that article did president trump nominate you to be a judge on the court of appeals? judge barrett: i apologize. i don't remember the timing of that article. i was nominated -- my nomination of 2017.nced in may sen: harris: that's correct. judge barrett: i don't remember when the article came out. sen: harris: january a toy 17. that would be five months later.
5:09 am
provided asburg vote to sixth boat -- uphold the a cap -- afford care act. let's lay this out. as i have discussed previously, republicans have spent a decade trying to destroy the affordable care act. named a supreme court justice who would tear down the affordable care act. is before thep supreme court right now arguing that it be struck in its entirety. the supreme court could be just one vote away from overturning the affordable care act and all of its protections, including for everyone who has a pre-existing condition or may get a pre-existing condition. in other words, the affordable care act and all its protections hinge on this seat and the
5:10 am
outcome of this hearing. i believe it's very important that the american people understand the issues at stake. barrett, the day after president trump announced your nomination to the supreme court, he tweeted, obamacare will be replaced with a much better and far cheaper alternative if it is terminated and the supreme court. in reality, there's no alternative that protects the millions of americans who depend on the affordable care act every day. president trump and the republicans in congress are fighting to take health care away from the american people in the middle of a pandemic. president trump has said that he wants to protect the american people's health care. the reality is right now, he's asking the supreme court to take it away.
5:11 am
klobuchar asked you earlier today but did not receive an answer. prior to your nomination, were you aware of president trump's judgesnt to nominate that will strike down the affordable care act? i would appreciate a yes or no answer. judge barrett: i want to be very careful. i'm under oath. i don't recall seeing those statements. i don't recall seeing or hearing those statements. i don't really know what context they were in. i can't really definitive give you -- definitively give you an answer. i don't recall hearing about or seeing such statements. imagine you were surrounded by a team of folks to prepare you for this nomination. judge barrett: yes. sen: harris: let me finish. judge barrett: i'm so sorry. sen: harris: did they inform you of the presidents statements?
5:12 am
that this might be a question that would be presented to you in the course of this hearing. judge barrett: when i had my calls with senators, it came up. senatorshe democratic wanted to know about the affordable care act and to satisfy themselves that i had not made any pre-commitments to the president about it. sen: harris: youth then became aware of the statement? is that correct. judge barrett: let's see. in the context of these conversations, i can't remember whether senators framed the questions in the context of president trump's comments. perhaps so. from my perspective, the most important thing is to say that i have never made a commitment, i have never been asked make a commitment. i hope the committee would trust my integrity not to entertain such an idea and that i would not violate my oath if i were confirmed and heard that case. saying that are you you are now -- before i said it
5:13 am
-- aware or not aware that president trump made these comments about who he would nominate to this -- the supreme court? judge barrett: i thought you framed the question as whether i was aware before the nomination process began. [inaudible] sen: harris: were you aware before the hearing began? judge barrett: you're asking me now whether i was aware before the hearing began? sen: harris: as a follow-up question, i am. judge barrett: when i had my calls with democratic senators, this question came up. i don't recall. it may have been that they reference those comments in the course of those calls. even so, that wasn't something i heard or saw directly by reading it myself. do you think it is important for the american people to believe the supreme court justices are independent and fair, impartial?
5:14 am
yes or no answer. judge barrett: yes, senator. sen: harris: a number of my colleagues have asked you today whether you would recuse yourself from cases on the affordable care act. you did not directly answer their questions. you describe the process by which that would happen. my question is, isn't it true that at the end of that process, regardless of that process, it would be you who ultimately makes the decision about whether or not you would recuse yourself? judge barrett: that is true. i can to you elicit a commitment from me about how i would make that decision in advance. that would be wrong. sen: harris: right. is it not correct that that is the process that, ultimately would be you and you alone that would make the decision about whether you would be recused? talked about the constitutionality of the affordable care act. that position [inaudible]
5:15 am
republicans want you to rule on this very case. reasonable reflection of that partiality will hang over this court's ultimate decision in the , if youle care act case refused to recuse yourself. i strongly believe that. considerourt justices the consequences of their decision on people's lives. earlier this year, the supreme court ruled against president trump in his effort to repeal daca protections for dreamers. children who have arrived in the united states before they could talk or walk. chief justice roberts wrote the opinion that included the crucial vote of ruth bader ginsburg. attemptt rejected the to end protections for dreamers.
5:16 am
chief justice roberts said the administration had not taken into consideration the fact that many dreamers rely on those protections when they start their career and businesses, when they served in the military of the united states, when they bought homes, when they started families. you whetherno asked it's appropriate for supreme court justices to consider real-world impacts. you are a sitting judge now. my question is, in deciding whether to uphold government actions, do you currently consider the consequences of your ruling on people's lives? judge barrett: that's part of the decision of every case. sen: harris: so you do? judge barrett: every case has consequences on people's lives. of course i do. that's part of the judicial decision-making process.
5:17 am
sen: harris: would you do that if you are actually voted on the united states supreme court? would you do that there was well? judge barrett: considering the resolution of a dispute, how it will affect parties, people, it is part of the judicial decision-making process. i will continue engaging in that process to the best of my ability. sen: harris: the affordable care thanif struck down, more 100 million americans with pre-existing conditions like heart disease, diabetes, and cancer would pay more for insurance rbn diet -- denied coverage entirely. more than 20 million americans could lose their health coverage entirely, including nearly 3 million black americans and over 5 million latino americans who receive access to health insurance because of the affordable care act. insurers will once again be able to discriminate against more than 50% of african-americans and nearly 40% of latinos with
5:18 am
pre-existing conditions. insurers will be able to deny coverage to more than one quarter of native americans with conditions like diabetes, heart disease, and cancer. all of this in the midst of a pandemic that is not going away anytime soon. that, when age is taken into account, has been three times as deadly for black, latino, pacific islander, and native americans. a pandemic that has killed approximately one and 1000 black americans, one in 1200 native americans, and one in 1500 latino americans. consider the 135 million people who gained protections under the affordable care act when deciding the case that challenges that law? judge barrett: if i were to be confirmed and conclude that i
5:19 am
was able to sit on the case, pursuant to the recusal statute, if i heard the case and decided the case, i would consider all the protections that congress put in place. as i said earlier, during this hearing, the question would be figuring out whether congress, assuming that the mandate is unconstitutional now, whether that, consistent with your intent -- congress's law, would ormit this act to stand whether the flawed portion of it could be excised out. that's a question not of what judges want, of the supreme court, it's a question of what congress wanted in the statute. that is the statute that you enacted and extended to millions of americans. 135 million americans with pre-existing conditions are depending on the
5:20 am
protections of the affordable care act. what weight would you give that? judge barrett: reliance interests are taken into account. as i said before, it's about keeping stability in the law. the law often takes into account reliance interests. i can't really say, sitting here, how they would play in this case. that's part of the legal calculus of the case. i can't really give you the kind of commitment or pre-commitment that you are asking from me of how i would weigh factors or structure my decision-making process. sen: harris: i would ask you to consider, if you are confirmed on the court, the incredible benefit of the afford care act. the destruction of its protections will have devastating impact on millions, hundreds of millions of americans. you testified yesterday that justice ruth bader ginsburg opened the door for many women
5:21 am
in law. believe that to be true as a personal matter. she was a trailblazer for women's economy -- a quality gender equity. the second woman ever to sit on the united states supreme court, justice ginsburg broke many barriers for women across the country. i believe we all fondly remember her as a person who had patients. she had the will and the vision to make our country a more equal place, a more just place. one of the things she fought for was the women's rights to control their own body and to make decisions about her body and health care and reproductive choices. the constitution of the united states protects a woman's right to choose whether or when to become apparent.
5:22 am
-- a parent. it protects a woman's right to choose abortion. women of color, immigrant women, women with low income, women in rural areas face significant barriers when attempting to access both control, cancer screenings, and comprehensive reproductive health care. moreover, anti-choice exodus and politicians have been working for decades to pass laws and file lawsuits designed to overturn roe and the precedent that followed. the threat to choices real. last year, the court heard a case that david an opportunity to revisit and overturn its abortion precedent in a case called jim medical services. the supreme court struck down a medically unnecessary restriction that would have closed all but one abortion clinic in louisiana. chief justice roberts agreed
5:23 am
with the court's liberal members, that the court was bound by its own precedent to strike down the louisiana law because it was virtually identical to a texas law that the court ruled unconstitutional in 2016. as a result, women in the state were able to receive the full range of reproductive care. chief justice roberts wrote his own separate opinion in the case to make clear that in the future, he could not be counted on to uphold a woman's right to choose. justice ginsburg provided the critical fifth vote to strike down the unconstitutional abortion restriction. we must be honest about the have on thell court's decision in cases regarding women's access to reproductive health care. my republican colleagues have
5:24 am
said that there's a minimal chance that the supreme court will overturn roe. back in january, 39 republican senators, including debt -- 10 members of this committee, signed their names to a supreme court brief that asked the court to take up the issue of whether roe should be reconsidered and if appropriate, overruled. let's not make any mistake about it. allowing president trump to determine who fills the seat of ruth bader ginsburg, a champion for women's rights and a critical vote in so many decisions that sustained the right to choose, poses a threat to safe and legal abortion in our country. trump saidpresident that overturning roe v. wade will, quote, happen automatically because i am
5:25 am
putting pro-life justices on the court. judge barrett, several times today you have quoted justice ginsburg's testimony about not making predictions. however, she was far more forthcoming at her confirmation hearing about the essential rights of women. in 1993, justice ginsburg's confirmation hearing shows that she testified, the decision whether or not to bear a child is central to a woman's life. her well-being and dignity. if the disk -- it's a decision if must make for herself, government controls that decision, she is being treated less than a fully adult human is possible for her own choices. say, ginsburg went on to
5:26 am
it's essential for women's equality with man that she be did the disk -- the decision-maker. that her choice is controlled. if you impose restraints, you are disadvantaging her because of her sex. ginsburg did not tell the committee how she would vote in any particular case but she did freely discuss how she viewed a woman's right to choose . judge merrick, your record clearly shows you hold a different view. in 2006, you signed your name to an advertisement published in the south bend tribune. wade as ans roe v. exercise of raw judicial power and calls for up to an end to the barbaric legacy of roe v. wade. 2013igned a similar ad in
5:27 am
that describes roe as infamous and expressed opposition to abortion. in 2013, you wrote an article about supreme court precedent in which you quoted roe from a list of well cited cases that you said, no justice would overrule even if she disagreed. suggesting that you believe roe is susceptible to being overturned. you delivered a speech in which you said that the court's recognition of the right to choose was, quote, created through judicial fee at. rather than grounded in the constitution. during your tenure on the seventh circuit court of appeals, you have been willing to reconsider abortion restrictions that other republican appointed judges found unconstitutional. as the senate considers filling the seat of justice ruth bader
5:28 am
ginsburg, who was straightforward enough in her confirmation hearings to say that the right to choose is isential to women's equality, would suggest that we not pretend that we don't know how this nominee views a women's right to choose to make around health or decisions. consent that the following documents be entered into the record. the letter opposing judge barrett's nomination from the naacp, a statement opposing her nomination from the planned parenthood federation of america and planned parenthood action and, and they were part -- report judging her nomination from the legal defense and educational fund. >> without objection. sen: harris: thank you. >> thank you very much. senator kennedy?
5:29 am
sen. kennedy: i have a letter here in support of judge barrett signed by 281 graduates and former classmates of hers. at the extraordinary st. mary's dominican high school in new orleans. i would like to offer that into the record. >> without objection. are you tired, judge? judge barrett: i'm looking forward to the end of the hearing, i must admit. sen: kennedy: me too. i will still answer your questions -- ask you questions. a lot of my colleagues and he was well have talked about the oath that you will take if you are confirmed and sworn in as an associate justice of the united states supreme court. what's in that oath?
5:30 am
what does it say? judge barrett: well, that oath requires a judge to do equal justice to all, without fear of favor, regardless of wealth. you know, to fairly apply the law. i give preference -- to not give preferential treatment or express bias. sen: kennedy: you will administer the law in an impartial manner, without regard to your personal feelings. judge barrett: yes it does. sen: kennedy: it says you will support and defend the constitution. serious oath, isn't it? judge barrett: it is. sen: kennedy: are you going to take that oath and affirm it if you are confirmed? judge barrett: yes. sen: kennedy: you are not lying. judge barrett: not lying. i took that oath before i began as a judge in the seventh circuit.
5:31 am
i've not violated that oath. i would take it again. oath's are serious to me. sen: kennedy: senator harris just called you a liar. she said if you take that oath, you would be lying. that you have already made up your mind on how you will vote on some cases, particularly dealing with abortion and the affordable care act. let's cut to the chase. she said you are a liar. are you a liar? judge barrett: i am not a liar. sen: kennedy: i want you to tell me again. look me in the eye. you're in front of god and country. if you take that oath, will you meet it? judge barrett: i will. sen: kennedy: do you swear to god? judge barrett: i swear to god. i have sworn at the seventh circuit. i meant it there, he too. sen: kennedy: you will never break that oath? no matter what your personal feelings are. no matter what your religion is? judge barrett: no matter what my religion is. sen: kennedy: when senator harris and her colleagues say you are a liar, they are wrong? judge barrett: they are.
5:32 am
see.kennedy: let's you are 48 years old. you are an honors graduate of rhodes college, and extraordinary liberal arts school. honors graduate of notre dame law school. you clerked for two distinguished federal judges. you've been a chair law professor. christian.evout you've raised seven children. wax to mean to metaphysical here. do you have personal values as a result of this? judge barrett: i would hope that no one would consider me to be nominated for anything if i didn't know values. sen: kennedy: do you have personal opinions? judge barrett: of course i have personal opinions. sen: kennedy: do you have principles?
5:33 am
judge barrett: i have principles. it would not be fit for office if i didn't. let's suppose that we had a nominee appear before us. it happens to be a man. said, i've been nominated for a federal judgeship. i finished law school but i hadn't cracked the law books since law school, since civil procedure. and i don't have any opinions. i don't have any principles. i don't read newspapers. i don't even read the news. i haven't read a book since law school. i'm like pluto and animal house.
5:34 am
i'm just fat, drunk, and stupid. the oneshe germans are who bombed pearl harbor. change, i think we didn't cause the cold war. i'm your guy. i don't have any values. i'm a blank slate. that's what is required, isn't it? for me to be impartial. do you think we ought to confirm that gentlemen? opinion ontt: an this issue. addressing recusal. someone basically, if reaches middle years, if one would be a justice on the supreme court, and had no opinions, one would question such a person's fitness for office. sen. kennedy: my colleagues seem
5:35 am
to think you're only qualified if you have a blank slate. you thought about the world, haven't you? judge barrett: i indeed have. sen. kennedy: have you thought about social problem facing our world? judge barrett: i have created sen. kennedy: economic problems? judge barrett: sure. sen. kennedy: i don't know what your feelings are, but have you thought about the merits and lack thereof nuclear energy? judge barrett: no, i really haven't. sen. kennedy: how about affirmative action? just as a subject? judge barrett: i've thought about it. sen. kennedy: how about climate change? judge barrett: i've read about climate change. sen. kennedy: and you've got opinions on climate change that you've thought about? judge barrett: i'm certainly not a scientist. i have read things about climate change. i would not say i have firm views. sen. kennedy: have you thought about the merits of a flat
5:36 am
versus progressive income tax? judge barrett: i have thought fleetingly about that. these are not things -- i am not a tax lawyer. sen. kennedy: i am not trying to trap you. how about justice kagan? i have always been impressed with her credentials. graduate of princeton. oxford, i think she went to harvard law. dean of harvard law school. do you think you thought about the world? judge barrett: i am sure she has, and i am also impressed with justice kagan. sen. kennedy: do you think she has thought about climate change and has personal feelings? judge barrett: i don't know. probably, but i cannot really say what justice kagan has thought or not about. sen. kennedy: you have personal feelings about abortion, don't you? judge barrett: i do have personal feelings about
5:37 am
abortion. sen. kennedy: have you ever thought about how we deliver health care in this country? judge barrett: i do, but senator kennedy, one of the things about the judicial rule that i have repeatedly emphasized today is i've got personal views and personal feelings on a range of matters, just like every human does and just like every judge or justice does. sen. kennedy: that's what i'm getting at. my colleagues say and senator harris said even though you have a personal opinion about abortion, that you will violate your oath to put aside those fairlyl feelings and decide abortion cases. is that true? judge barrett: i gather that's what you were saying to me, yes. sen. kennedy: is she right? judge barrett: no. sen. kennedy: let's talk about the affordable care act. california v. texas. you thought about the delivery of health care. judge barrett: yes. sen. kennedy: you've got seven children.
5:38 am
you have probably been to an emergency room. judge barrett: yes. sen. kennedy: you've formed opinions about the delivery of health care. should you recuse yourself? judge barrett: senator kennedy, any opinions that i have, everyone has opinions. any opinion i have are just not relevant to the resolution of the case. the affordable care act case or anything else. a lot of my opinions are not ones that are expert. for example in scientific matters, taxing matters, i may have dinnertable discussions but i am not an expert. sen. kennedy: this is serious. judge barrett: ok. sen. kennedy: some of my colleagues and senator harris say you are lying. are you lying? judge barrett: i am not lying. sen. kennedy: are you going to take that oath and abide by it? judge barrett: yes. sen. kennedy: will you have a break that oath? judge barrett: i will not. sen. kennedy: one of my colleagues, i don't rooem
5:39 am
ember which one, said that because president trump nominated you that if there's is a case that happens to go to the united states supreme court after you are confirmed dealing with the election, they asked you to recuse yourself. remember that? judge barrett: mm-hmm. sen. kennedy: you said you would go through the process. judge barrett: of determining recusal -- sen. kennedy: you did not commit to recusing yourself. you said you would go to the process. judge barrett: i committed to going through the process of determining whether to recuse. sen. kennedy: now, president trump nominated judge kavanaugh, now justice kavanaugh. do you think anybody would ask him to recuse himself when the president's tax reforms were before the court? judge barrett: i don't know. sen. kennedy: just aice
5:40 am
gorsuch was confirmed by the senate. did anybody ask him to recuse himself when president trump's tax reforms were before the court? judge barrett: i don't know. sen. kennedy: do you know who paula jones is? she sued the president of the united states. judge barrett: president clinton. sen. kennedy: clinton v. jones, famous case. president clinton nominated justice ginsburg and justice breyer to the united states supreme court. they heard that case. did anybody ask justice ginsburg to recuse herself because president clinton nominated her? judge barrett: i don't know. sen. kennedy: do you think she should have? judge barrett: that is not something i would opine of. i'm sure she discharged her oath. sen. kennedy: denny out of my colleagues ask that justice breyer recuse himself from hearing clinton v. jones because president clinton appointed him? judge barrett: i don't think so. sen. kennedy: i don't think so either.
5:41 am
i will finish this housekeeping because i want to talk about the law. i want to give you a chance to respond to something. at bostona professor university says that because you and your husband have two you're aof color, that white colonist. the implication is you are racist. and you use your two children as props. do you use your children as props? judge barrett: senator kennedy, it was the risk of people saying things like that which would be so hurtful to my family that when i told senator graham this morning that my husband and i had to wave across this, it was saying deeply offensive and hurtful things to me and my children. who are my children, who we love
5:42 am
and who we brought home and made part of our family. and accusations like that are cruel. sen. kennedy: yeah, they are, aren't they? how low can you go? i didn't want to ask that question when your kids were here. i'm sorry you have to go through that. ok, let's talk about the law. will not ask -- i you how you will rule on a case. you couldn't cancer anyway, you would violate the judicial canons of ethics. i don't know what would happen to you but it would probably be pretty bad, because you are a sitting judge. let's suppose that a litigant -- let's suppose congress passed a statute making distinctions on the basis of wealth. judge barrett: ok. sen. kennedy: and somebody filed a lawsuit and said that that
5:43 am
argument is well as a suspect classification. how are you going to analyze a case like that? tell me how you would analyze it. i just want to know how you think. judge barrett: if someone argued wealth is a suspect classification, i would assume you are saying they are probably making an equal protection claim. so, i would go to -- precedent would be the first source because equal protection clause has a rich body of precedent under it that identifies suspect classes. theexample, classes on basis of race get heightened scrutiny. i would look through supreme court precedent to determine if there was anything relevant to the question of whether wealth was a suspect class were not. -- or not. sen. kennedy: you are familiar with senator tonio school district v -- san antonio school district v. rodriguez. judge barrett: my mind is getting mushy.
5:44 am
sen. kennedy: wealth is not a suspect classification, is it? judge barrett: i am not aware of a case. sen. kennedy: here is what i don't understand. remember this is congress passing the statute, not some state. pursuingitigant is not this under the 14th amendment, he or she is pursuing it under the fifth amendment. no, making a substantive -- he's making an equal protection argument. not due process, that would be a fundamental right. where does the fifth amendment mention equal protection? judge barrett: the fifth amendment has a due process clause. sen. kennedy: the 14th amendment has a due process clause and equal protection clause, which applies to the states. but the fifth amendment to the constitution has a due process clause, but it does not say a word about equal protection. judge barrett: that is true but
5:45 am
the supreme court has interpreted it as applying equal protection clause as well. sen. kennedy: how can they do that if the words are not there? judge barrett: there's a case, i believe in which the case the court addressed this was the one that addressed the competition analogy of segregation in the district of columbia which is governed by federal law. and the court said the same principle applies. essentially, the reasoning of brown applies there. sen. kennedy: ok, i remember that. -- i went backut and took a look at scalia wrote the majority opinion. i think stevens wrote the leading dissent. it was interesting they both took an originalist approach. scalia relied on -- tell me what an originalist approach is again? what is your strain? judge barrett: you take the constitution -- in heller, what
5:46 am
justice scalia did, and this is an example of original is. he went back to the ratification of the second amendment to figure out when that amendment was ratified, whether that right to bear arms was considered an individual right or one that was a civic right. sen. kennedy: considered by whom? judge barrett: by the people at the time, not in the minds of the framers. sen. kennedy: sorry. judge barrett: no. sen. kennedy: i'm having a little coffee. i'm kind of jacked up. i went back and looked it up. onlia, he relied founding-era dictionaries, english laws, american colonial loss, british and american historical documents, colonial-era state constitutions, post-annett enactment commentary.
5:47 am
here comes justice stevens, he's dissenting. he relied on in his dissent, he relied on linguistic professors 18th century treaties on alias, on which scill arrived. here's to my question. when did justices become historians? let me put it another way. if this is the way we are going to interpret the constitution, by looking at history, why do we need you guys? why don't we have professional historians? so justicest: well, and judges interpret laws, and we interpret text. unclear, you have
5:48 am
to figure out what their meaning is. sometimesstitution, that does require delving into history. that justice scalia would make, the alternative is -- let's say you have an amendment like the second amendment right to bear arms. if it is not evident looking at it whether it is an individual right or collective right, one approach would be to rely on the moral judgments of the judge, of the justice, to say whether they think it is a good thing or bad thing for the common good for people to have an individual right. judges are not moral philosophers either. when you are interpreting the text, you need to turn to something, what judges know as words and law. having them go back and look at the history, those are familiar things. i think all justices consider, as i said earlier in the hearing, all justices do consider the history of original
5:49 am
meaning. that has been true since the beginning of the court itself, throughout the 19th century, the idea of original iism is not new. throughout the 19th century and the 20th, the court has resorted back to see what the original meaning is. i would say the difference between those who identify themselves as originalists and those who consider it is the amount of weight they give it. all justices have to do it to a degree because everyone agrees as a matter of law, the original meaning matters. sen. kennedy: tell me what the ninth amendment means. judge barrett: the ninth amendment was once famously described as an ink blot. the ninth amendment has not been fleshed out in litigation. i don't think it is an ink blot, just to be clear. but, it's not one that there's a whole lot of case law on. sen. kennedy: i want to talk to
5:50 am
you a little bit about originalism, or at least your toain, and how it is related textualism. from --it is different did i understand you correctly to say an originalist believes the judges have to follow the original public meaning of the constitution? judge barrett: correct. sen. kennedy: the original public meaning. judge barrett: public meaning as distinguished from private intentions of those who drafted the document. sen. kennedy: does this mean, when you see original public meeting, whose meaning? the average person in the community at that time? judge barrett: we would say informed observers. i would say informed observers. those that are familiar with the debates. which is why looking at the state ratifying conventions,
5:51 am
debating the cuss addition can be a fruitful source. sen. kennedy: i know it's not ok to do it exclusively, but is it ok to consider with the drafters thought? judge barrett: james madison's notes from the cuss additional convention -- constitutional convention is a source we look to, but it is not conclusive. sen. kennedy: what is the dimension of time? at what point in time do you look at the original public meaning? judge barrett: i would say there's some debate about that because you will necessarily have all the evidence you need right from 1791 which is when the bill of rights was ratified. i think looking at the evidence from before that, we see that in heller. justice scalia looked at how people understood that right leading up to the ratification of the second amendment because it cast light on the language people were speaking at the time and how they would have understood it. you can definitely look some before.
5:52 am
sen. kennedy: ok, if you look at 10 years after the constitution, is that ok? how about 20? judge barrett: i think all of that can be relevant evidence. i think the farther that you get away from the ratification of the document, then i think the dicier it gets because we might 1801, that 1791 and people have roughly the same understanding. but of course, as time passes, then attitudes can change. i wouldn't say there is a certain cutoff, but i think it is clearly the case the evidence that is closer to the time is the most probative. sen. kennedy: what's the difference between originalism and textualism? howe barrett: textualism is we describe a method of interpreting statutes. it actually, in many respects,
5:53 am
is kind of originalism applies to a statute. you take statutory texts -- for theclean water act or anti-barrett act passed today, you would look at what the words would have meant to those of the time and informed observers of the debate. sen. kennedy: you are looking at the ordinary meaning of the words? the plain meaning of the words. judge barrett: the plain meaning of the words. sen. kennedy: what if they are unclear? judge barrett: well, there are a series of canons of interpretation that judges employ to decipher language, like linguistic tools. sometimes it implies the expression of some things -- sen. kennedy: you know better than i do. but if thie statute is unclear, if there's no original meaning, can you look at
5:54 am
legislative history? judge barrett: generally, i think legislative history is the last fruitful source because generally when people make arguments about legislative history, they tend to be less about what a word meant and how a statute would apply to a certain circumstance which is a little bit different. sen. kennedy: if it's ambiguous, you can look at legislative history as a last resort? judge barrett: you can look at legislative history to determine whether there was a particular understanding of a word or a phrase. but, i think it would be in most cases inadvisable to look at legislative history to make a determination, certainly not to treat it how a statute would apply to a set of facts. sen. kennedy: how ambiguous -- a -- if thet would say statute is ambiguous, if it is unclear, i could consider secondary sources. how ambiguous does it have to
5:55 am
be? 51%? 65%? how do you know how ambiguous? judge barrett: it's not a precise -- it is an art, not a science, i would say, senator kennedy. you exhaust all the canons of interpretation and that includes even ones that are not the grammatical canons, that are likely avoidance canon. you run through all of those and then you look at the structure of the statute. i think deciding when something crosses the threshold of becoming ambiguous to be considered canons likely avoidance canon, that is a very difficult question. hard to debate about the chevron doctrine. term propose the now. you correctly look at the statue even if it is clear. i can still look at secondary
5:56 am
sources and try to figure out what problem the legislative body was trying to solve. judge barrett: that is so, yes. the purpose of this would say to be faithful to congress would be to be faithful to the purpose of the statute and sometimes the text does not align exactly with the purpose. in that circumstance, the judge should go with the purpose rather than the text. sen. kennedy: everyone is a ualist now. go, i hoperds, they the language of the statute, it's unclear, so i checked off the originalist, rather textual look andi can go see what congress wants to decide and do what i want to do. judge barrett: there has been some academic commentary
5:57 am
definitely in the last five or 10 years saying that has become the new strain of textualism. you might know the case wholly trinity. sen. kennedy: it has been overruled though? judge barrett: its approach to statutory interpretation? it has never been overruled, but it has gone out of favor. this idea of doing what you are saying, stretching to find ambiguity in text, the argument that some make is it is a new form of holy trinity because rather than saying the text is clear but inconsistent with a purpose, the argument is that the purpose renders the text unclear. sen. kennedy: let me ask you a couple more. i want to talk about a state constitution. in louisiana, we had a constitutional convention in 1973. we wrote a new state constitution. we recorded everything. we got, i think 14 volumes of
5:58 am
transcripts, committee reports. anything you could possibly want to know about the drafting of the 1974 louisiana constitution. are you telling me to just throw all that stuff out? judge barrett: no. those things would be the equivalent at looking at james madison's note from the constitutional convention or state ratifying convention. all those things shed light on what louisiana and's were thinking when that constitution was drafted and ratified. sen. kennedy: ok. mr. chairman, i want the record to reflect that i landed this plane with 26 seconds left. sen. graham: so noted. thank you very much, senator kennedy. senator blackburn. sen. blackburn: thank you. i have three letters to submit. of from penny nance, the ceo concerned women of america, on behalf of that organization. amer, chairperson
5:59 am
of women for america first, on behalf of the organization. they are both in support of judge barrett. and a letter of tennessee secretary of state who is applauding her record on textualism and stands in support of her nomination. sen. graham: no objection. sen. blackburn: judge barrett, you have been a trooper so we are going to do a little bit of loose ends tying up and then get you on your way. and we appreciate the commitment you have made. i tell you what, my hat is off to you. you have been great to be here today and to stand right with her. i tell you, i wish my husband were here. we were talking a little earlier today about, when i called him, about how you have been right here, hardly leaving the chair the entire time. and we appreciate that.
6:00 am
my husband has said he's going to someday write a book and going to call it "i carried her purse." because we couldn't do what we do without supportive spouses. first thing i want to say, and senator ernst touched on this, our colleagues across the aisle have spent a lot of time talking about covid relief and the importance of that for health care for people that are suffering. they have the opportunity. we can put our bill back on the floor. they each chose to vote no, every single one of them, on additional ppp, unemployment insurance, money for testing and vaccines, getting schools open and liability protection so that businesses can open. we would be very pleased to have that bill back on the floor and to pass it to get needed relief to the american people. the second thing i want to touch
6:01 am
on, i think there's been a little bit of confusion with some of the comments that were made. it's important to note that abortion is not mentioned in the u.s. constitution. judge barrett: the word abortion does not appear in the u.s. constitution. sen. blackburn: that is correct. roe v. wade is not an amendment to the constitution. judge barrett: roe v. wade interprets the 14th amendment in because edition and locates the right to terminate a pregnancy and the liberty. sen. blackburn: i think that from some of the comments from some of our colleagues, there has been confusion about that. senator thing is whitehouse kind of came at you, saying that you've never tried a case, and i think it is important to note that justice kagan had never tried a case. -- we want to have that
6:02 am
she's been mentioned several times today. as a point of clarification, we would want to mention this. one thing that we have heard a good bit about in this committee and some of our colleagues chose to mention this yesterday is that republicans don't nominate enough female judges. but, when we nominate a highly qualified woman for a supreme court vacancy, what is the very first thing they do? they turn their attack machine on. and then they start into the politics of personal destruction. notthey attack you for being -- for not fitting into the paradigm of the left because you are pro-life, profamily,
6:03 am
pro-religion. and we have seen this happen with other judges that have come before us. judge naomi brown, wendy vetter. they have been criticized. if you don't buy into this agenda of the left, if you are female, then they act as if you are not a real woman. , quitewill tell you frankly, they do not believe that all women deserve to have the opportunity to have a seat at the table. it is only certain women and we have seen their liberal narrative play out today. s when sherono on thi suggested that you of all people would not support women in the workplace. and, i will tell you this -- as a woman who has worked in the private sector and been in
6:04 am
public service, when comments like that are made, it discourages all women. from trying to step forward and trying to take the skills that they have developed in one area of their life and then use it as an opportunity to serve their nation, to serve their community, because they don't want the liberal tattack machine pointed at them. and i will tell you, quite frankly, it is so discouraging to me to see groups on the left say we want diversity, but let that diversity come from a woman right on the political and it's like their heads explode. they do not want that as a part of the conversation.
6:05 am
what they prefer to have is a very narrow, liberal viewpoint. i look forward to the day when that will stop because all women deserve the opportunity to rise. so know, i find it interesting that they don't want to support women from the political right because we do not submit to the leftist agenda. we won't submit to that. so then, freethinkers end up being called bad women and tra itors to our gender and other disparaging comments that are out there. and you have endured some of these pretty extraordinary revelations today, many of which accusations that
6:06 am
you are part of some sort of backroom conspiracy to rig the system against the american people and that your record as a judge is somehow frightening and going to cost a panic. but i have a feeling that this is not the first time you have heard such rhetoric or have been subjected to such rhetoric by a group of your peers that have probably tried to hold you back because of your personal beliefs. i think that most of us that come from the political spectrum on the right have endured that. a professional organization that would have been nice to join, but because you are pro-life, you can't. wanted,not participation not wanted because you are pro-religion. profamily. opinion not want to. do not apply for admission.
6:07 am
and this is the kind of wrongheaded perception that needs to stop. it is not uncommon for women who practice their faith or who hold pro-life views to endure this, especially in a professional context. that is what we have seen the left throw at you today. interestingit so that they have tried to use this focus to evaluate your professionalism as a judge. exactly what they say they despise. interesting take. i'd like to hear a little bit more about the intellectual and personal discipline you mentioned during senator lee's line of questioning. let's go back to that.
6:08 am
you said that discipline is required from resisting the urge to exercise your own will when deciding how to rule on a case. so, talk for just a second about that. why it's important to stay true to your basic constitutional statutory framework rather than favoring the living constitution approach? well, senator blackburn, i think as it came up with senator lee, i know senator hawley too, that judges are not policymakers. we live in a pluralistic society where we have lots of different views on lots of different matters. senator kennedy was pointing out. so, in a pluralistic society, i may approach a particular problem -- let's say a problem of constitutional law, and i may really feel like the results i want is one way, but i am just
6:09 am
one person. and there are surely other people in america, other people thehe bench who would see best resolution going a different way. so, who am i or who is any judge to say that their result -- oh, just this once i will reach the result that seems the best even if it runs against the law that the people have ratified. so, it would be wrong -- i don't think want to live under the law of amy. we have the united states constitution and that's what judges should be faithful to. sen. blackburn: i think probably the law of amy prevails at the barrett household over those children. [laughter] judge barrett: 50-50. sen. blackburn: i used to tell my children. my son's birthday was today, we were chatting earlier. we were laughing about how i
6:10 am
want them to do something that they did not necessarily want to do, i would remind them that i was the chief mama in charge. it was something that was going to happen. let me touch just a second on obamacare. because they have, our friends across the aisle, have seemed to express a deep concern about a case that is coming up on november 10. and how this would take obamacare down. again, this goes into their fear mongering and causing panic, and we know that. because it is not about the aca case that is scheduled for november 10. this is all about their concern that a constitutionalist judge on the supreme court just might get in the way of their push to implement government run health care. to do a socialized medicine plan
6:11 am
or to do the green new deal or to statehood for d.c. their wish list of items that they have. but, we do, for the record, need to clean up the numbers that are around this. we have heard some wild numbers get thrown around today when it comes to the aca. 8.3e are, right now, million americans enrolled in the aca marketplace exchange, enrolled in obamacare. is what they are doing blowing that number up. they have tacked on the entire individual market and added medicaid and medicare to get to their number that they are say ing is 150 million americans
6:12 am
are going to lose their health care. what they're not saying is there are 153 million americans that are in the private health care marketplace. so, if they got their way, everyone of those individuals in their private health care marketplace would lose their health insurance. certaingoal is to make that all americans have access to affordable health care. and i think it is a bit .3singenuous the way -- that 8 million is the number that comes to us from cms and hhs. then, as i said, they are blowing that up by adding the entire individual market and medicaid and medicare. and forgetting to mention that
6:13 am
americans that have a private health insurance. my colleague from california would really like to have people believe that your sole mission in life is to overturn the aca, and that you have stated you are not on a mission to overturn the aca. judge barrett: i'm not, senator blackburn. i have no mission and no agenda. judges don't have campaign promises. sen. blackburn: that's a good thing. i have made much about a letter you signed opposing contraceptive mandate and an article you wrote criticizing an interpretation of the aca. i had a very interesting conversation today, actually did
6:14 am
a facebook live with one of your former students who had written an op-ed for real clear politics. chase? said, one of the things he appreciated about you is that you made your students think. and i think that is a wonderful because whatudge getdid was to cause them to into problem-solving at a time when we lived in a cancel culture, that is a very positive thing to have students do. to cause them to think. so, we really appreciate that. and i know you have stated you are going to put aside personal opinions and abide by the constitution when it comes to
6:15 am
the cases thatof would come before you. let's move on. went to the fourth amendment with you, and i want to touch on this pertaining to electronic searches and surveillance. the fourth amendment is so important for safeguarding the privacy of our citizens and our data from unreasonable search es and seizures. and so many americans are doing so much of their life online and i think it's imperative that americans have the ability to whicht their virtual you, is their presence online, their data, their transactional life.
6:16 am
for so many people, it is the way they are working. and as you said at the white academy inony, the which you co-principled, people are going to school online. case, carpenter v. u.s., and it outlined how far the constitution protects searches of electronic evidence. it was a 5-4 decision and the court ruled law enforcement must obtain a warrant in order to track a person's cellular location information beyond seven days. justice thomas and gorsuch both dissented, and justice gorsuch objected that the majority's reasonable expectation of privacy was not faithful to the fourth amendment text. gorsuch recente
6:17 am
the fourth amendment protects only those searches included in the original text. houses, of persons, places and effects. lism critics of original iis complained that today's laws should not be ruled by the dead hand of the past. can you explain how the fourth amendment can still govern the modern world searches and seizures, and how will it continue to apply to emerging technologies that the founders never could have imagined? judge barrett: sure. general matter, the fourth amendment protects against unreasonable searches and seizures. it doesn't mean that it protects only the kinds of searches and seizures that those who live at the time of the adoption of the bill of rights could have anticipated.
6:18 am
surely, they could not have anticipated the internet or cell phones or airplanes, for that matter. one can reason from the kinds of privacy protections that were in place in 1791 when the fourth amendment was ratified to see if the search of modern technology now is analogous to it. so one example is the kylo case. justice scalia wrote the opinion on that case. that is a case where law enforcement used an infrared detector to see if someone was growing marijuana on the inside. they could use the infrared to see if it lit up, people were using heat lamps. justice scalia said, yes, that was a search. the fourth amendment did apply, even though that technology did not exist at the time. it was the same kind of invasion into the home, so it didn't matter infrared machines were not in contemplation of the generation that ratified the
6:19 am
fourth amendment. sen. blackburn: ok, then, is there a difference between deviceng for data via a that is in a person's possession and searching for, say, data on the servers that are hosting? judge barrett: that would be a question i probably cannot answer, in addition to the fourth amendment, there would be statutes that govern how much data one could mine. that would be one of those legal hypothetical situations that i wouldn't be able to answer in the context of the hearing. sen. blackburn: all right. let's end it at that so that you can get out of here. there are a couple of things tomorrow we will have time and we will talk about a couple of those other questions. campus free speech, executive
6:20 am
overreach, a couple of other things we would like to have on the record. but, thank you very much for your patience and for your desire to serve. judge barrett: thank you. sen. graham: thank you. i would like to echo what senator blackburn said. you have been very patient, very poised and i really appreciate the way you have handled yourself. i quite frankly think this has been a good example of what can be in the judiciary committee. challenging questions on things that matter to people and a way you can leave the arena saying, well, that worked pretty well. one more day. 20 minutes apiece. see you at 9:00. [captions copyright national cable satellite corp. 2019] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy.
6:21 am
visit ncicap.org]

150 Views

info Stream Only

Uploaded by TV Archive on