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tv   432  CSPAN  October 14, 2020 12:29pm-5:50pm EDT

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supreme court confirmation hearings. we'll take you now back to 214 hart building on capitol hill. as you see, the family has back into the hearing room. the afternoon session is about to begin. live coverage here on c-span.
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>> the hearing will come back to order. senator klobuchar.
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klobuchar: thank you very much, mr. chairman. hello, judge. i want to start out again by reminding our friends at home, people at home, that this isn't normal, we shouldn't be here right now. we are in the middle of a pandemic and people are sick. we are in the middle of an election and people are voting. and here we are, stuck in a nomination hearing. i know what my constituents care about, what they have been calling and writing me about. and that is they are afraid of losing their health care in the middle of the pandemic. people's lives depend on the affordable care act like steve, a senior from minnesota who has a heart condition and relies on his prescription medication. emily from minneapolis, her mom was diagnosed with breast cancer. janet from rochester whose brother has a mental illness.
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or christie, a mom from bloomington whose daughter had a tumor. that is what is on the line. health care is on the line and judge, that is what is on the line in your nomination hearing which unfortunately has been blocked in the middle of this election. this morning you had an academic discussion with chairman graham about the doctrine of severability, and that is about if you can uphold part of a statute or throw out another part of it. and you correctly said there was a presumption to save the statute if possible. clearant to be really with the american people that the trump administration, this is a position of the trump administration, the trunk justice department says that the entire affordable care act must fall. that is the position of the trump administration going into this case that is going before
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the supreme court in a few weeks. judge, you flirt at the supreme court. does the justice department brief that they have filed represented the administration and therefore the president's position before the supreme court? the government advocate before the court. it would represent the united states. sen. klobuchar: and if the brief did not represent the president's position, he would have the solicitor general and the justice department withdraw the bridge, is that right? judge barrett: sen. klobuchar: i believe so. sen. klobuchar:i just wanted to make that clear to the chair man and to everyone out there that while there is this doctrine to separate stop and to try to uphold part of the statute with nady pre-existing conditions or doing something about keeping your kids on the insurance, the position of the trump administration is to throw the whole thing out. the second thing i want to make clear is that you've been nominated to the highest court in the land and you will be the
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deciding vote in many cases that will affect people's lives. and i appreciate that you have said it is not the law of amy, it is not your law, but the point is that you will be in a really important position. i think that is one of the reasons that they are trying to ram through this process right now. and while you are not say how you are going to rule on cases, as i said yesterday, i've been following the tracks. the only way for the american people to figure out how you might rule is to follow your record and follow the tracks. and we know this, you have said you consider justice scalia one of the most conservative judges in our nations history as a mentor. you criticize a decision written by justice roberts upholding the affordable care act. in 2015 you praised the dissent by justice scalia in another affordable care act case, saying the dissent had the better of the legal argument. you sign your name to a public statement featured in an ad that
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called for an end to what the ad called the "barbaric legacy of roe v. wade" which ran on the anniversary of the supreme court decision. you broke your own dissent disagreement long-standing court rulings on gun safety, expressing your legal opinion that some felons should get guns and you once discussed it is sent in the marital quality case asking whether it was really the supreme court's job to make that decision. so, to me, these tracks lead us to one point, and that is that you will have the polar opposite judicial philosophy of justice ginsburg. me, that would change the balance of this court which is and known as very conservative when you look back through history to 6-3. 6-3. that would have great repercussions for the american people. i wanted to follow-up on something that senator harris and i asked you about yesterday and that is the issue of whether
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or not you understood the president's clear position on the affordable care act before you wrote the article in which you criticized the legal reasoning for upholding the affordable care act. just onedent tweeted day after you were nominated, that would be september 27, that it would be a big win if the supreme court strikes down the law. but before you were nominated, and this is what we showed yesterday, donald trump tweeted promising that his judicial appointments will do the right thing on obamacare unlike justice roberts. yesterday, you were asked by senator harris prior to your nomination, were you aware of president trump's statement committing to nominate judges who will strike down the affordable care act? you said i can't really definitively give you a yes or no answer. what i would like to say is i don't recall hearing about or seeing such a statement.
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and after she followed up, you said that the tweet wasn't something that i heard or saw directly by reading it myself. ok. so i just want to go through some of the things that have happened over the last few years. regarding the president's obsession to repeal obamacare. he said we will repeal and replace disastrous obamacare when accepting the republican nomination at the republican convention in 2016. did you see that speech? judge barrett: at the republican convention? in 2016, i'm not asking if you were there, i asking if you saw it on tv. judge barrett: i don't believe i watched any of the convention on tv. sen. klobuchar: he had said things like he wants to immediately repeal and replace the disaster known as obamacare. he has said that he wants to get rid of it. he has said in state of the
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union, i am calling on congress to repeal it. he said at mitch mcconnell less green repeal and replace for seven years could not get it done. there have literally been hundreds of statements by him, by my colleagues, and i just find it hard to understand that you were not aware of the president's statements. i am aware that the president opposes the affordable care act. i am aware that he has criticized the formal care act. i took senator harris's question yesterday to be referring to a specific tweet, maybe the one that you have behind you, about how he wanted to put a justice on the court to replace obamacare. i'm definitely aware of that now, and as i said to senator harris yesterday, it came up in some of my calls the democratic senators. but i honestly can't remember whether i knew about it before i was nominated or not. i'm not sure. sen. klobuchar: but did you have
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been a general understanding that one of the president's campaign promises was to repeal the affordable care act when you were nominated? judge barrett: as i said before, i'm aware that the president opposes the affordable care act. sen. klobuchar: i know you are aware now. were you aware back then? when you were nominated. judge barrett: senator klobuchar, i think that the republicans have kind of made that clear through public discourse. sen. klobuchar: is the answer yes, then? judge barrett: senator klobuchar, all these questions you are suggesting that i have animist or that i cut a deal with the president. i was very clear yesterday that that isn't what happened. 4 sen. klobuchar: were you generally aware of the president's statements when you wrote an article in the university of minnesota lost journal in 2017, the same year that you became a seventh circuit judge, that he pushed the affordable care act beyond its probable meaning to save the
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statute that justice roberts had done that? or you aware of that, of the president's statements when you wrote that article? judge barrett: that article was published in january of 2017. a law review article takes several months to go into production. so i can't remember specifically when the conference was. that article came out of a conference. i can't member what it was but i suspect it was before the election. it's not like i wrote it -- sen. klobuchar: president trump has 2016,aying this in 2015, and that is two years. it didn't take that long to read the article. my question is simply, were you aware of president trump's opposition to the affordable care act during that time? judge barrett: senator klobuchar, i have no idea and i suspect that if the article was published in january that i wrote it sometime before the presidential election. and again, i want to stress i have no animus to or agenda for
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the affordable care act. you are suggesting this was an open letter to president trump. it was not. sen. klobuchar: ok. the 2017 university of minnesota law school journal that we just discussed, one of the things you said is that there is a risk that faction can run away with the legislative process but there is also a risk that a faction will conscript courts into helping them win battles they have already lost fair and square. is that something you wrote in that article? judge barrett: i did, i was responding to an argument made by randy barnett in his book. is what i'mar: that afraid has happened. they have tried 70 times, the republicans of congress, to overturn obamacare. and now they are bringing this case to court and you are going to be sitting on the court. very hard to believe that you didn't understand that when you wrote
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the article. there's one other piece of this, and that is the effect on the economy. we all know this has been very difficult, my colleagues know this. according to one study, more than 800 businesses have closed every day, 30 million people are out of work at the height of the pandemic. still down 10 million jobs. one of the things that has been going on here is we have seen more and more consolidation. leading me to antitrust. releaseit is the covert package we have to pass but also antitrust. competition is the driving force of our economy. justice ginsburg and her nomination hearing described the sherman act as a broad charter. she said that free enterprise is the spirit of antitrust law and the court construes statutes in accord with the essential meaning that congress had for passing them. diva agree with your statements?
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-- do you agree with her statements? judge barrett: the sherman act is broadly worded insofar as it prevents conspiracies and restraint of trade. because that language is broad, for it to develop a robust doctrine of common law to enforce and bring about its promise, of eliminating contracts, conspiracies and combinations that restrain trade. sen. klobuchar: yes, you and i have discussed this before but in recent years, supreme court opinions all decided over justice ginsburg dissented, have made that even more difficult. as a textualist, how you reckon -- reconcile the broad language of the sherman act with the narrowing of the statutes? judge barrett: let's see. i can say as a textualist how i would approach the sherman act. you are right, that is broad language.
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the sherman act, as the court has determined over time, essentially commits the court to develop a common law. i haven't really had occasion to decide very many antitrust cases on the seventh circuit but because it has largely been left to judicial development, it is controlled for the most part. sen. klobuchar: it is, and that is my concern right now. it is so narrow in its interpretation of the sherman impossible is almost for people to bring those cases in any big way. i want to turn to something we talked about yesterday which is a lesson. you worked on the recount in florida that was related to the including oncase an absentee ballot issue on behalf of the republican side of that case, is that right? judge barrett: i did work on bush v. gore on behalf of the republican side. to be fully honest, i can't
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remember exactly what piece of the case it was. sen. klobuchar: i'm not going to ask you that. we are in the middle of a global pandemic that is forcing voters to choose between their health and their vote. ballots, mail-in ballots, an for millions of americans right now? judge barrett: that is a matter of policy on which i can't express a view. me, that just: to feels like a fundamental part of our democracy, but ok. have you ever voted by mail? judge barrett: um. i can't recall a time that i voted by mail. maybe in college when i was living away from home. i can't as i'm sitting here specifically recall a time i voted by mail. sen. klobuchar: do you have friends or family that have voted by mail or are voting by mail? judge barrett: i have had friends and family vote by mail. and fewbuchar: understand we are operating in a
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moment where the president is undermining vote by mail, a number of republican governors and republican senators are supportive of it. goreargue that bush v. hurt the court's legitimacy. if you are confirmed, the supreme court will have not one, not two, but three justices. you, just as kavanaugh, and chief justice roberts who worked on behalf of the republican party in matters related to the bush v. gore case. do you think that is a coincidence? judge barrett: senator klobuchar, if you're asking you whether i was nominated for this seat because i worked on bush versus gore for a very brief time, that doesn't make sense to me? sen. klobuchar: i just think it is such a coincidence to be, i actually didn't know it until yesterday. having justices with this background, to of whom were appointed by the current
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president, decide any case related to the upcoming election, do you think that will undermine the legitimacy of the courts? asking whether something would undermine the legitimacy of the court or not seems to be trying to elicit a question about whether it would be appropriate for justices who participated in that litigation to sit on the case rather than recuse and i went down that road yesterday. sen. klobuchar: you said you wouldn't recuse. judge barrett: that isn't what i said. sen. klobuchar: you said you wouldn't announce your decision on recusal and you wouldn't commit to recusing. but again, i think the public has a right to know that now three of these justices have worked on the republican side on a major, age or issue related to a presidential election. one thing i want to revisit quickly, the reason i asked about that is that this would be unprecedented. right now we are in unprecedented times where we
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have a president who refuses to commit to a peaceful transition of power. theing to undermine integrity of this election. yesterday, you wouldn't commit to recuse yourself from the case we just talked about. now we are considering your confirmation to the highest court in the land. courtt case, the supreme held that a governor is part of the legislative process and therefore a legislator cannot unilaterally change election rules. that could be very important because they a number of swing states, we have legislature one-party governor of the other. we have this precedent that has been on the books for nearly 90 years. do you think that it an established supreme court precedent? that a governor is part of the legislative process? judge barrett: i actually am not familiar with that case but it is precedent. obviously it is a precedent of the court. sen. klobuchar: i wanted to turn to one last issue and that is first amendment and freedom of
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the press, near and dear to my heart, my dad was a journalist. he would go anywhere for a good story and cared less about freedom of the press. regrettably, our right to a free and independent press is under unprecedented attacks on journalists and journalism in the past several years. our president fridley uses his twitter account to attack news organizations. he has accused the media being fake news and called them the enemy of the people. obviously, we also have journalists overseas that are under attack by dictators. i want to pay special tribute to those brave journalists whose pursuit of the truth never wavered despite threats of imprisonment, violence, and even death, journalists like jamal khashoggi and the men and women of the capital gazette. their legacy is proof that fear will not silence fax.
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the founders recognized that a free press is vital to a vibrant and strong democracy and that's why we need supreme court justices who understand the importance of protecting the right of journalists. sullivan, you know that is a landmark ruling. the support of the first amendment protection for the press and protecting journalists unless they say something untrue with actual malice. justice thomas has expressed skepticism with that case. thatng in his concurrence if the constitution does not require public figures to satisfy an actual malice standard in state law defamation suits, then neither should we. do you agree with justice thomas that the courts should reconsider the actual malice standard because it is inconsistent with the original meaning of the constitution? judge barrett: senator klobuchar, i can't really express a view on either new york times v. sullivan or justice thomas's without violating the principle that all nominees follow that i can't
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comment on matters of litigation that the court has already decided. sen. klobuchar: i also want to ask you about her journalists have been deterred from doing their jobs under the threat of jail time after the supreme court's 1972 decision. many federal courts of appeals to recognize what is called the reporter's privilege which protects reporters first amendment right to protect his or her sources from disclosure in certain circumstances. the seventh circuit on which you serve has rejected a constitutional basis for a privilege. under its original published meaning, does the first amendment protected reporter's decision to protect their confidential sources? judge barrett: again, that would be eliciting a legal conclusions from me which i can't answer in a hypothetical form in a hearing. it is also a question as you point out that is closely related to one's being litigated. sen. klobuchar: one less trite. if reporters cannot protect their sources, they are less
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likely to be able to find confidential witnesses willing to share information, confidential informers willing to share information about issues of public importance? judge barrett: that would both be a policy question, a matter of public policy which i can't express a view on, and reasonably also one that might factor into the question of what the first amendment protects. again, it is not something that i can give an opinion on in this context. sen. klobuchar: i guess my last thing i will just say is i hope people watching out there are going to follow the tracks of this record and are going to vote. thank you. sen. graham: center -- >> welcome back, judge merrick. -- judge barrett. let's start with how a judge looks back on their career at the end of it. if you are confirmed, 30 or 40 years from now when you hang up your robes and sit on the front porch in south bend or whatever, probably with a gaggle of grandkids around you, how will you judge whether or not you had
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a successful career as a judge and justice? judge barrett: i would judge whether i had had a successful career by whether i had always acted with integrity, whether i had always followed the rule of law and resisted the temptation to twist the law in the direction that i wanted to go, whether i had treated my colleagues kindly and with collegiality, whether i had help toward -- mentored and had good relationships with my clerks and any assistance or staff that i had. >> and how would that differ from how senator -- a senator should look back on his or her career after hopefully not 30 or 40 years, but in my view, 12 would be a good limit. how should senators look back on their careers? judge barrett: so i probably can't say how a senator herself ien, but as a citizen, how might indict a center's career and that would be did he pursue
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a good policy, did he vote for legislation that advanced the cause of the common good in the united states. think when you corrected my question so that you didn't even pretend it was a have a medical where you saw yourself as a senator, i heard both young of -- have these gasps relief that you were not going to be running for senate at some point. i know what has been clear in our conversation over the last three days, that a number of us who are excited about your originalism and your belief that the job of a judge is very different from the job of a policy maker don't think that polling has any place in the questions before us at this point. but it is sort of hard to figure after three days and hear claims made over and over again about how much the american people are opposed to you or whatever. so even the polling should have
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no place, just as a matter of correcting the record, i did happen to look up this morning and the american people are overwhelmingly in favor of your confirmation. seems to have been distorted so repeatedly with his idea that the american people are opposed to this, the public view of your confirmation is overwhelmingly in favor. thisnk it is plus 17 morning. anyway, certainly i want you to comment on that. i would like to transition to your writings a little bit. you, again, are a prolific writer. i think justice breyer is the only person currently sitting on the court that looks like he has written more than you have and he has got a few decades of extra time as an adult writing relative to you. can you tell us how you think your writing might change in the future? how will you pick venues, topics, what would you write about the justice? again, presuming confirmation. judge barrett: yes. so, i would say most of my writing was during my time as a full-time law professor.
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the only thing i have published, i think since being confirmed to the bench was i published a lecture that i gave, and then i edited a transcript of remarks i gave on a panel that was not a full-length article. i found frankly that it is hard to manage all the demands of family life and the job and writing any kind of scholarly article that i did in the past. if i were made on the seventh circuit and perhaps if unconfirmed at some point to the supreme court, i would like to do more of that. the vein ofthat, in what justice breyer does now, or what my colleague said, which is writing that is designed to educate about ideas. really, really set herself out to teach high school
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students and people in america about civics and how the civic classes works. i find myself wanting to reach for general audiences. in toi will zip back scholarly writing again. sen. sasse: that is very helpful, i think it would be very useful if we had justices who did more of that civics education. you've named a few. i think there are some others of the last 30 or 40 years who have done a lot of public civics education. i differ with whether cameras of the a good idea in the court, not that you need to opine on that. i'm glad because the audio transcripts, i'm glad we have a lot of press that covers the court. i think we would get a lot more michael avenatti nonsense if we had cameras in the court. i think we would get a lot of transparency. i think more cameras in the court is a bad idea, more justices before the public
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explaining the structure of our constitutional system would be a huge asset and given your history with notre dame students and law students, it seems like a natural fit for you. for what it's worth, i think you have a lot of people who would encourage you to take that. to tackle a few of those constitutional structure questions for a popular audience, can you explain what the ninth amendment is about? why do we have it? it's oftentt: treated as a rule of interpretation. this not a lot of substantive doctrine or any doctrine under it. preserving the rights, if the individual rights are preserved. that does not expressly granted are not taken away. sen. sasse: and if we maybe broaden it from just the ninth amendment to the bill of rights in general, why do we have one and what would be different in our constitutional structure if we didn't have the bill of rights?
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judge barrett: if we didn't have a bill of rights we wouldn't have particular rights singled out for special protection. as i'm sure you know, senator, the bill of rights was added in 1791 because during the debate about the ratification of the original constitution, many states objected to the fact that there was no bill of rights. , the originaldea constitution, beginning with article one, moving up, was that the very structure of government protected rights. and there wasn't thought to be a need to have the bill of rights because it was thought that the separation of powers and the structure of federalism would be a protection for those rights. but those who really felt like they wanted the additional protection of the bill of rights prevailed and james madison drafted them and they were ratified in 1781. sen. sasse: i don't mean to put is it fair to saysasse:
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that most governments in human history have had a default assumption of prohibition? do whatevernt can they want and set is in stone have rights until the government give them rights. you don't have the freedom to start a business. the american system starts with the opposite assumption, which is that freedom is the default condition, people are created in the image of god with inalienable rights. the government has to have specifically enumerated powers, we, the congress have to the article to branch. if they don't have the authority and the executive branch, they can't do anything unless congress gives them the freedom. we have a freedom assumption on people and a prohibition assumption on government. prior to the bill of rights, the structure of the constitution was saying that we don't need to
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, because youhts have rights until prohibition has been created. is that a fair way to think about it? how would you expand on it more eloquently? judge barrett: you are far more eloquent than i. than is inaccurate -- that is an accurate description. the assumption was that if congress had limited power, it would not have the ability to infringe rights in the first place. at the time the constitution was ratified, the states were thought to have -- because the people are closer to their state states, that is the point of federalism, citizens can have different policies in and in their state legislatures than federal government. what role does the declaration of independence play
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in interpreting the constitution ? judge barrett: the declaration of independence is an expression of our ideals, an expression of our desire to be free from england. law,is no -- it is not however. the constitution is law. it is our governing document. while the declaration of independence tells us a lot about history and the roots of our republic, it is not binding law. sen. sasse: what are the five freedoms of the first amendment? judge barrett: speech, religion, , and i don'tly know, what am i missing? sen. sasse: protest. why is there one amendment that has these five freedoms clustered? judge barrett: i don't know what
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you're getting at on that one. what is the common denominator? sen. sasse: them getting back to the same idea that the bill of rights was sort of an attempt to do public catechism. -- i'm getting back to the same idea that the bill of rights was sort of an attempt to do public catechism. we believe in the limitless rights of people. later, when they started spelling it out, they got jazzed up trying to work this out for the american people. this is amazing stuff. i wanted to hear you reflect a little bit on the glory of the first amendment, even though it was not needed as part of a structure in the beginning. why five of them in the same amendment? judge barrett: i don't know why.
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i'm sure there's a story that i don't know about why those appeared in the first amendment altogether, rather than being split up in different amendments. assembly, protest, speech bear more relation to one another than free exercise. but i think they are in the first amendment, and i think that reflects that those are core values. that reflects the states who ratify the constitution, the original constitution, on the understanding that a bill of rights would be added, wanted protections like that to be included, because they were to what the new americans thought was going to be america. sen. sasse: thank you. i agree with you. i think some of why it is so useful to think about the five together in my mind is because you don't really have freedom of religion if you don't also have freedom of assembly, if you
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cannot gather with your coreligionists. you don't have freedom of speech if you cannot publish your beliefs and advocate for them. you don't have any of those freedoms if you cannot protest and seek the redress of grievances when government oversteps and tries to curtail freedoms. i think some of the important questions about judicial modesty and some of the last three days of hearings are very relevant and prudent. but i also think there are times when there has been questioning you have been put through that has implied that because you have free assembly rights as an individual, when you were a faculty member, wife, mom, and neighbor in south bend, when you signed something walking out of church, that sort of implied that there was something inappropriate, when the default assumption in our system is that we all have these freedoms, because the civil society associations we have our where we actually find happiness,
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meaning, joy, and love. not juste things judges wearing robes need to have to demonstrate humility, but all of us in our callings, time,lic servants for a to go back and sit under the tree at mount vernon, is that this is not the center of the world. this is not the institutions of where meaning is found. it is to maintain a framework for ordered liberty so that the places where the 330 million americans actually live can be the center of life and meaning and the association and religion and press. system asof our volunteerism, entrepreneurship, community, neighborliness, and love. power is just in service of that. an expansion upon it. it was the idea of a silver frame, but the golden apple, the constitutional
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structure is to maintain the order of liberty so people can pursue the true and the beautiful, the happy and the neighborly, the center of the picture. i would like to pivot from constitutional structure to baseball for a minute. do any of your kids play baseball or softball? judge barrett: two of our boys had a very brief career in baseball. sen. sasse: obviously, not as great as football, but we can still call it an american pastime. -- miserable cheaters -- i think all baseball fans know the houston astros cheat, they steal signs, they bang on cans, they have done a bunch of miserable things historically and deserve to be punished more than they have been. but tonight's game four.
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>> thank god the first amendment protects that right. [laughter] it was going so well. is. sasse: i noticed ted wearing a lone star state fly, but not an astros mask. tonight's game for in the championship -- game four in the championship series. if used in loses to tampa, they will be -- if used in loses to tampa, they will be done. to cap aston loses they will be done. that leaves people feeling desperate at times. tampa,ouston loses to they will be done. that leaves people feeling desperate at times. the ends justify the means. you can imagine that the houston astros, have cheated in lots of ways in the past, with sign stealing, might try to go to the umpire and try to persuade someone to expand the strike
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zone just for houston in the game tonight. that would honestly be inappropriate, right? judge barrett: right. sen. sasse: we can't have two sets of rules. i think an umpire is supposed to imply rules fairly to both teams. we can all agree on that as rules of fair play. i think some of what we have seen in the questions over the last three days are trying to get an umpire to commit to a different set of rules for different teams. so for what it's worth, to reiterate what i think so many of us have been trying to argue for in these hearings is the alleged equivalency between republican and democratic questioning here implies that republicans have been trying to get you to pre-commit to certain policy outcomes, and i just think that is actually what's been happening in this hearing. i think the original is him you have defended and a lot of us ine been advocating for
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advance of and during this hearing is not a request for republican policy positions to be advocated to the courts. to herather a plea democratic colleagues -- our democratic colleagues to embrace a system where we distinguish between the two political branches and the apolitical branch. the fact that you are before us to be confirmed to a lifetime appointment, where you will put on a black rose, is a liturgical act where you are cloaking your policy preferences in humility. it is obviously the case that we are all shaped by life experiences. it is obvious for the case that people have lived in communities in the past, and most people who went up as extranet iger have been connected to or around the political process at different points in their career. but that is not to undermine the ideals we have in the american system that judges should not see themselves as super legislators, they should not see
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themselves as policy advocates, and they do have to take up this humility.o a greater it means you lay down certain freedoms that are inalienably yours prior to becoming a judge so that you don't have the appearance of bias and impropriety in the future. i want to reassert the idea that we should be trying to excise from our language this idea of conservative and liberal blocks on the court. republican and democrat justices. what we want, i want us to not just be a republican aspiration, but a democratic aspiration again. what we want our people on the court who understand what humility -- that humility and modesty are a judicial role. it is not a rule to be a policy advocate. you have comported yourself extraordinarily well over the last three days as you have been repeatedly asked to be an umpire who pre-judges certain
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cases. serviceu for the you have offered the americans the last two days. temptedhairman, i was to make a parliamentary inquiry as the unjustified senator from nebraska pilots rule 19 of this body. , whenhave decided not to i came to the realization that nebraska lacks a professional , doesn't always have a winning football team, either. i view it more as a plea for a substantive point. i will say, the reminder of the senator from nebraska's questions in exchange with judge merrick was excellent and wonderful civic education for all americans.
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the lies about the astros should be stricken from the record. >> i will later be asking submitus consent to to the record historical information about the houston astros. >> can't wait. >> will you include a photograph of the world series trophy? >> i want to thank judge barrett for not interrupting during your hearing. [laughter] senator coons? coons: good to be talking to you again. these questions of fairness and who follows the rules and who are the empires, do we win at all costs or do we respect the traditions of the game is essentially what is before us. let's get to it with the 20 minutes we have. thank you again to your family and everyone who has traveled with you today. in accepting president trump summer nation to the supreme court, you stated -- president
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trump's nomination to the supreme court, you stated you share justice scalia's houghts on certain factors. i think the american people need to better understand what the originalist philosophy could mean for their daily lives. i think it means our entire modern understanding of certain constitutional commitments around liberty, privacy, and equality under the law could infect be rolled back to 19th or even 18th-century understandings in a way that is unrecognizable to americans. many of these notions are rooted in a landmark case decided in 1965, griswold versus connecticut. with the supreme court held married couples have the right to use contraceptives in the privacy of their own home. in 2012 on fox
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news, justice scalia said this decision was wrong. because under his originalist philosophy, there's a such thing as a general right to privacy in the constitution. this is a question most currently serving justices have answered. when we spoke on the phone last week, you said you couldn't think of any specific issue of law for you disagreed with the justice scalia. do you agree with him that griswold was wrongly decided and thus they should be able to make it illegal to use contraceptives, if they so chose? judge barrett: senator, as i said a number of times, i can't a --ss a view, yes or no, f.or is very,hat griswold very, very unlikely to go anywhere in order for griswold , there woulded
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have to be a passed law prohibiting birth control. i think that is an academic question that would not arise, but it is something that i can opine on, particularly because it does lie in the base of substantive process, which continues to be litigated in courts today. sen. coons: for the benefit of those watching, i think you all know, your predecessors talked about griswold in detail. chief justice roberts said he agreed with the court's conclusion. he shared your view that he's commenting because it would not go before the court. justice alito said the same thing, they agreed. do," thatgan said, "i
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she is willing to speak to it. understand that you are saying to us you are going to be your own justice and you are very hesitant to talk about this case because it is an anchor to substantive due process. let me just one more time say, are you unwilling to say, as so many justices have, that at least griswold is not wrong? i think griswold is not going anywhere unless you plan to pass a law prohibiting couples, all people, from using birth control. i think the question, because it is entirely academic, because it seems unthinkable that any legislation would pass such a law, i think the only reason that it's even worse asking that question -- worth asking that question is to set a predicate as to whether roe v. wade was rightly decided.
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because griswold remains a subject of litigation over the country, i don't think it is a case i can opine on. i don't think griswold is in danger of going anywhere. sen. coons: to be clear about what it underlines, it's not just the griswold -- that griswold was the kind of case it was, it was extended to unmarried couples, extended to the women to control their choices and wrote mkz, but also to support same-sex couple intimacy. the reason i am taking a few minutes with this is that justice scalia publicly disagreed with each and every one of these cases, dissented. he wrote in web-based decisions it reflected the court adopting the so-called homosexual agenda.
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just last week, justice thomas and justice alito said the supreme court needs to fix problems. anderson you will be your own justice -- i understand you will be your own justice, but i also think you have made it clear that it is largely your philosophy, justice scalia's philosophy. i'm helping viewers understand what it means to replace justice ginsburg with someone who may more closely follow justice scalia's approach. if he had had his way, we would be in a very different country with regard to gender discrimination. in one of justice ginsburg's most famous decisions, she struck down a male only admissions policy. vmi honored justice ginsburg with the contribution of the female alumni they made.
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and just getting out how closely you would align yourself with justice scalia's jurisprudence. would you agree with justice scalia that justice ginsburg's decision in vmi was wrong? judge barrett: to be clear, i think i responded to this question yesterday. i do share justice scalia's approached the text, original is him and textualism. the votes he cast are a different question whether i would agree with the way he apply those principles in particular cases. hopealready said, and i -- i have already said, and i hope you're not suggesting that i don't have my own mind or that i could not think independently. i assure you i have my own mind. that he said is not necessarily what i would agree with or what i would do if i were just the spirit.
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-- if i were justice barrett. that was justice scalia. i never said that i would reach the same outcome as he did. sen. coons: understood. but i think a case like this is a striking example of what it might mean to replace justice ginsburg and her methodology and her approach with someone much closer to justice scalia. frankly, to me, this comes back in part to the president who nominated you. president trump did not nominate you to carry on justice ginsburg's legacy. he nominated you because he wants to undermine or shift that legacy. he was been very clear about his intent to nominate justices in the mold of justice scalia. yesterday in an extent with senator leahy that replacing justice scalia with justice garland would've changed the balance of the court. it's something you wrote about in 2013. you recognize these balance ships are why supreme court
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nominations are so much an issue in presidential elections. acknowledge that your confirmation, even though you will not be identical to justice scalia, will profoundly impact the balance of the court in a way in which it decides future cases -- the way in which it decides feature cases? judge barrett: i was having an interchange with senator leahy yesterday about an interview i gave shortly after justice scalia's death, but after judge garland's nomination. i did say that phrase, lateral move. i very much agree with senator sasse that we should not talk about republican judges and democratic judges, because i think they are just judges. but of course, it's true that judges have differences in judicial philosophy. breyerlly think justice and justice scalia are good examples of this, because they sometimes had public debates, with justice scalia advocating a regionalism and justice breyer
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advocating active liberty. --advocating or regionalism advocating originalism and justice breyer advocating active liberty. judges do not have policy platforms, but it is certainly the case that judges take different approaches to interpreting the text. that is what i meant when i was describing the balance of the court, the shift it would be -- the shift that would be away from one balance to another. sen. coons: i want to explore with you exactly how those shifts in methodology, in approach may well have a dramatic impact on the policy outcomes. on what is and is not upheld as law going forward. me, i haved behind asked my team if we could just go back and look at cases. all of these cases listed have something in common. justice ginsburg was in the
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majority, justice scalia was in the minority dissenting. onse are cases that touch nearly every aspect of modern american life. i talked about yesterday about health care in the affordable care act. a number of my colleagues have talked about some other areas. but what is striking is if you just look at what a 5-4 balance towards this methodology means, it has huge consequences. for education. for consumer rights. for access to the courts. for civil rights. for immigration. for environmental protection. for native american rights. for workers rights. for election. for reproductive rights. for free speech. civil justice. economic development. privacy. government misconduct. prisoner rights. capital punishment. gun safety. criminal justice. in each and every one of these ginsburg hadtice been replaced by a justice with the same core methodology
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,pproach and view of the law you can't predict exact how the case would've turned out, but in virtually every case, it would have moved in a different direction. in a direction much closer to scalia's philosophy and further away from justice ginsburg. that is why i think your views on president matter. and we should take a few minutes and go through them. it's something you have written about at length. court areence of the precedence upon which litigants, the average american, should be able to rely on, the whole issue about whether justices are simply umpires calling balls and strikes, or whether there is some agenda. my concern is that a leading scholar in the field of constitutional law has recently reviewed your writings and illustrate at you radical willingness to revisit precedents.-
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more extreme as than justice scalia. the supreme court has long held that overturning precedent of a settled is required strong grounds and justification spirit into thousand three article in the university of colorado law review, i am quoting, "the generally speaking, if a litigant demonstrates a decision that clearly -- purports to interpret, the court should overrule the pres -- the precedet." -- "generally speaking, if a litigant demonstrates that a prior decision clearly
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orinterprets a statutory purports to interpret it, the court should overrule the precedent." statement?d by the judge barrett: that statement was talking about the courts of appeals. i believe that statement was about the due process clause. you probably stretched that from your lawyer days. the principles of issue preclusion and claim preclusion. that article was about how when the courts of appeals, they had a very rigid rule that one can not overrule another. that those rigid rules of the courts of appeals were conclusiont or doctrine. it was not about normal functioning of precedent. especially at the supreme court, where there are no such rules.
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i would point out that the article was about circuit courts and courts of appeals. i don't think there's any evidence i've been unwilling to follow or apply circuit precedent. the scholar criticizing me as a radical, i'm not sure who it was. because isurprised, think it was my conversation with senator feinstein earlier, i explained that the article which many people have plucked this sentence from, it was a defense of the supreme court's approach to constitutional stare decisis. sen. coons: your words were not just limited to this context. theas a novel analysis, 2003 article, something i had not thought about, how stare impacts a --
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litigant. you are saying that if a supreme court justice think the prior ruling was clearly wrong, she should disregard precedent that she disagrees with regardless of the balancing factors. sen. coons: -- judge barrett: that sentence has been plucked out of the article 2, creating an impression about the context. the whole article discussed reliance, interests, and emphasized that courts ought not disrupt settled precedents without good reason to do so, reliance interests being one. no one on the court or even no one in this room would think that the court never revisited a precedent. whoas senator leahy earlier
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held that certain sexual conduct between same-sex partners was illegal. was criminalized. that was overruled. my guess is that -- precedentink no -- shouldr not be rea ever not be revisited. sen. coons: in terms of reliance interest, you wrote that reliance should count much less, .-- if at all you have a knowledge reliance exist, but in this
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article, it seems to me you are giving your own views about whether reliance should matter. you are unequivocally stating it should not. it should matter less, if at all. approachoriginalist says this is wrongly decided. that is why to me, the concern about reading the constitution through a scalia lens rather than a quite different methodology -- methodological ginsburg lens. you are likely to overturn precedent. you cited statistics that certified originalists. overruling precedents more than any other justice in an 11 year period. the disturbing picture to me about precedent is that i think there's been a movement amongst originalists and a change in the approach of judges to judging, who self
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identify as originalists. in the 2017 article, and the university of minnesota, and constitutional -- in the university of minnesota in constitutional commentary, "they have abandoned the claim they should be an original list because it produces -- an originalist because it produces more restrained judges." do you agree with that statement? judge barrett: i don't recall that sentence or its context. and inull body of work, and also,ship, nothing in my record in the seventh circuit shows this respect for stare decisis, and justice scalia did prefer to
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follow precedent. in a think there's any evidence to suggest -- i don't think there's any this, i to suggest don't have an agenda in that regard. sen. coons: so exactly what cosmic concern as i looked at thomas versus scalia, which may be more the role model he followed in terms of the application of stare decisis. these quotes jumped off the page. they were compelling and well written. but these quotes struck me as clear statements of a view or an intent. as i said before, the larger challenge here is not what you have said about your views on cases, but what the president who has nominated you has said about his goals and his objectives for your service on the court.
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frankly, my concern about original is him -- originalism is that in combination, justice scalia's views often expressed in sharply worded memorable may makes for great academic writing, but most americans do not expect them to become the law of the land. they would overturn well-settled precedent that i think we have all come to expect. is thatconcern here your confirmation may launch a new chapter of conservative judicial activism, unlike anything we have seen in decades. the point of the chart was to show, we have mostly been talking about the affordable care act and privacy related cases. if that is true, it could touch virtually every aspect of modern american life. i pray that i am wrong. i hope that i am. but in my reading of your work,
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nothing has alleviated my grave concerns that rather than building on justice ginsburg's legacy of advancing privacy and equality and justice, i am concerned in fact you will take the court in a very different direction. with all due respect, i will be voting against your confirmation, your honor. thank you, mr. chairman. sixth super precedent cases, how many were there? we know where they are at. sen. coons: there was marbury, brown, -- judge barrett: there was marbury, brown, the civil rights cases. >> just very briefly, for the public, the reason those cases were picked by you, nobody is suggesting in today's world that it's not the supreme court's decision to interpret the constitution. judge barrett: that's correct. to be clear, that list was formulated by other scholars.
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nobody thinks marbury versus madison and the court authority interpret the constitution. >> nobody in america is wanting to go back to segregation. no legislative body is attempting to do that for a good reason. america does not want that. nobody in their right mind wants that. the rest of these cases that have been listed as super precedent have that commonality. judge barrett: that is correct. >> as to row, casey, heller, the united citizens, active litigation going on right now today, is that correct? judge barrett: that is correct. >> senator hawley. aware ofawley: are you any litigation in recent decades , challenging the constitutionality of griswold versus connecticut? judge barrett: i am not. >> are you aware of any legal movement to challenge the
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constitutionality of griswold versus connecticut? judge barrett: i am certainly not aware of anyone trying to make the argument that a legislator should prohibit the use of birth control. but as you know, griswold does lie in the base of the doctrine that is challenged in internal court. sen. hawley: i was seven years old when one judge came before this body. i think the legacy of the board hearings continue to reverberate, his name has become a verb, what we see today is an attempted borking of amy barrett. they have nothing in your record to so badly misconstrue changing america, tha they now have to attribute to you the worst readings of justice scalia. record, distort
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that, and the tribute it to you. let me go back to your relationship with justice scalia. i was under the impression you were a different person than justice scalia and you had your own mind. is that fair to say? judge barrett: that is fair to say. sen. hawley: is it fair to say you are an independent warmer and an independent jurist and an independent professional and also a pretty darn good lawyer and you will make up your online of the decisions, cases, controversies that come before you? judge barrett: yes. sen. hawley: i think then we can put to rest this attempt to constantly leverage the worst interpretations of justice scalia's philosophy, misrepresentations, and attribute them all to you as if you are the same person. friendly, i think it is demeaning and insulting. and i'm glad you pointed that out in response to your independence. let me ask you about another set of questions briefly. senator leahy asked you about the foreign emoluments clause, which is in article one, section
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nine, paragraph eight. yes whether it was characterized as an anticorruption clause. -- he asked whether it was characterized as anticorruption clause, with foreign interference. he referenced the president and various allegations. since he asked you about it, i think it's only fair that i ask whether hypothetically speaking, just hypothetically, if there were a vice president of the u.s. who hypothetically had an adult son who hypothetically worked for a foreign oligarch who then sold access to his father, theo his vice president, then his father intervened in a case to metronet oligarch was not prosecuted, hypothetically, would that constitutewould that corruption? judge barrett: i cannot answer hypotheticals. sen. hawley: let me ask you about something different.
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section 230 of the communications decency act passed by congress in 1996, yesterday, justice thomas issued a dissent from a denial in a case called the malwarebytes case. judge barrett: i was just about to say, please don't ask me about it, because i did not have a chance to read it. sen. hawley: let me read you just a few parts of it. it's quite significant. hears from the opening paragraph, when congress enacted the statute, the communications decency act, most of today's major internet platforms and not exist. -- did not exist. we have never interpreted this provision in the years since. but many courts have construed the law broadly to confer sweeping immunity on some of the largest companies in the world. he's talking about the big tech companies. he quite methodically, over 10 pages, goes on to set out the ways in which courts at the
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behest of these tech companies have dramatically rewritten section 230, changing its liability standards, changing the distention between publisher and disturbing or liability, changing the immunity shield, changing the narrow liability shield, extending to hundred 30 to protect companies from a broad array of defect claims. he says it is quite a thorough statement. here's my question to you. dissent,l,. about his -- not about his dissent, but in general, where the dangers for the supreme court or any court rewriting a statute departing from the text that congress or legislature or lawmaking body they have written that has been adopted? or of the dangers in that if a court departs -- what are the dangers in that if a court departs from that?
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just in general, the danger of a court doing that is to subvert the will of the people. judges are not elected, they have life tenure, they cannot be voted out of office. if judges misconstrue statutes or bend them to the idea of what it would be good public policy, it the present people of the chance to express the policies that they want through the democratic process. sen. hawley: the effect can bikini live. you can start with a change to the statute that then becomes president. when the court revisits the issue later, then they expand that and will little more rewriting. pretty soon, 5-15 years later, you are with something that's been so heavily blue penciled, but it doesn't bear much themblance at all to
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original statutes. that is the danger of courts continuously substituting their own judgments. is that fair to say? judge barrett: that can happen. sen. hawley: i think it is prickly or that has happened, with section 230. -- i think it is pretty clear that has happened, with section 230. in a related thing, justice holmes, in the famous lochner dissent in that case, he said the 14th amendment does not enough mr. herbert spencer's social status. do you agree with that statement? what do you think he was getting at with that? judge barrett: justice holmes' famous dissent and lochner, which was later the position -- in lochner, which was later the position adopted in the courts, was that courts should not pour their ideas of good economic policy into the 14th amendment to stand in the way of policies that the legislatures enact.
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on questions of maximum hours for bakery workers, minimum wages, those kind of things. sen. hawley: you mentioned economic policy. talked was a little bit about how a court could substitute its own views -- talk to us a little bit about how a court could substitute its in the place of legislature or congress. judge barrett: and the lochner in the lochner era, the court was standing in the way of workersro -- of reforms for workers. precedent a for free trade, having a minimum ite, having no minimum wage,
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tdn't comport, it would hwart the will of the people. sen. hawley: most judges are not economic experts. are there dangers in general with courts acting as economic policymakers, the setting economic policy -- deciding economic policy? is that something courts should be wary of? judge barrett: i'm certainly not an economist. i think courts are experts in interpreting law. that is what we are good at and what we should stick with. sen. hawley: i raise these concerns in conjunction with section 230, because in the closely related antitrust context, we have seen over a many years court
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substitute their judgment in many case for what the words of a statute actually say and what perhaps the fairest interpretation of statutes might actually be. 230 orther it is section the antitrust laws, one effectiveness is to see growing concentrations of power in this country economically. that i think are very significant threads to the ongoing operation of our democracy, the basic ability of people, to control the levers both of the economy and of culture and of government. i'm afraid that courts have some role in this in the way justice tom -- justice thomas dissented yesterday. i want to ask for your view on this. these are issues that you very may well be called upon to weigh in on. give hope that you will dhese issues consideration, an the very well taken warning of instice holmes and lochner -- lochner.
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that insight has been lost sight of by both republican and democratic appointees over many years on the supreme court in a variety of areas. let me transition to one other area of law that is very important. back to the first amendment and to the free exercise of religion. you had an interesting free exercise case recently. you were on the panel. you did not write a decision. they decided on september 3 of this year i'm a so it's quite recent, just last month, this is a case in which the governor of ise state was sued because "h executive order related to covid lockdowns exhibit special solicitude for the free exercise of religion." the case challenged that special solicitude for religious organizations. you joined the opinion, you did not dissent. can you say why you joined the
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opinion, and why you think the content here is right? judge barrett: sure. case, the eleanor republican party said that because the executive order in given except for the free exercise of religion, so that people could gather and urges or synagogues or mosques -- in churches, synagogues, or mosques, that had to extend to the illinois republican , because everyone religion could not be singled out for special treatment, and that right to free speech, free was aly, etc., that it content-based distinction that could not survive. what that opinion set about that is that it was permissible for the governor of illinois to carve out an exception for free exercise. and that doing so did not compel the government to extend the
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same protection to everyone. as one judge said in his opinion, trying to accommodate a right expressly mentioned in the constitution did not the covid order in jeopardy. sen. hawley: the opinion is very , this is thepoint case thatoting from a gives special solicitude to the rights of religious organizations. this opinion you joined goes on to say there can be no doubt that the first amendment singles out the free exercise of religion for special treatment, rather than being a mechanism , the freesing views exercise clause is concert based.
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what i understand the panel to be saying is the free exercise of religion is not reducible to the free exercise of speech and reducible to the free exercise of assembly. those are important rights, those are also protected, but the free exercise of religion protects something different and more. it protects the rights of religious people and religious organizations of all backgrounds, the world over, but in this country, it protects them and gives them special solicitude under the first amendment. have i got that caressed? judge barrett: i can't take judge of the eloquent language. the panel makes is the free exercise of religion is singled out for it some protection of the first amendment rather than being a subset of speech. the position would have been putting more everything under the speech umbrella. sen. hawley: why du think that
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is an important point -- why do you think that is an important point? why is it significant the first amendment gives special to the rights of religious associations? judge barrett: i think that case itself, the illinois republican case showed why this matters, because another panel held the outcome may have been different if we had been ly as a freesole speech question. content-based distinction, under the first amendment, gets scrutiny and can be hard to satisfy. the case might have come out differently. sen. hawley: i think in this time, when we see many challenges to the rights of
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religious organizations, their ability to meet freely. where frankly we see many instances around the country were religious organizations are thaned less favorably secular counterparts, whether gyms,is casinos, and liquor stores, you name it. so many executives around this country have singled out charges for disfavor. whether it is in the covid context or other contacts. i think the holding of this opinion is very significant. on supreme court's doctrine this, the rights and the special solicitude for religious organizations, is very significant. i will conclude by saying that it's been a privilege to get to speak with you these last couple of days. congratulations to your family. i thinku have been --
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you have been -- your answers to this question -- your answers to these questions have been impressive. i want to put a point to what senator sasse said, you exercise your rights of assembly, free speech when you were a faculty pointed outhe there's nothing wrong with that, you should not be penalized for it. i want to agree with the chairman that i think there's nothing wrong with confirming to the supreme court of the united states a devout catholic pro-life christian. it would be my privilege to vote for you. >> senator blumenthal. blumenthal: welcome barrett.dge have aarrett: i did glass of one. i needed that at the end of the
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day. sen. blumenthal: let me just say, on that kind of point, you have the right to remain silent. mr. chairman, i will do enter into the record some letters ofm the national council women and the jewish organization, gun provincial organizations, and the pro-choice caucus. >> without objection. sen. blumenthal: there are a couple of loose ends i would lead to clarify from our conversation of yesterday. first of all, in our discussion second amendment, we both made reference to the third circuit and its ruling on whether or not individuals donvicted of a crime coul possess a firearm. i think you cited the third circuit as supporting the idea that certain felons could possess firearms, if i'm not
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mistaken. judge barrett: i went back and checked that, too. you were right. it was a splintered decision. [no audio] [indiscernible] [inaudible]
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>> we will take a 10 minute recess.
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announcer: a brief recess here, as there were some technical issues, some problems with the microphones here. this is live coverage of the third day of the amy coney barrett confirmation hearings. questioning, lasting for 20 minutes, and 10 minutes respectively. the 10 minute session is coming up a little bit later this afternoon. this is live coverage on c-span.
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host: they had some technical issues with senator blumenthal's microphone. they're taking a short break. a story taking a look at some of the questions during the day, a lot of topics being discussed during the course of this morning. the affordable care act, the voting rights act, the constitutionality of medicare. cameras in the room also topic of concern and during the course of the questioning judge barrett jenga.ncing the game more expected in the second round. 20 minute rounds during the fifth course with the chairman saying they are pursuing wrapping up on the second day of questioning. stay close to c-span as we resolve this issue. storyas "the usa today"
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and you can see that at people are posting on twitter as far as reaction with the event. the senate reporter commenting, earlier, on chuck grassley who questioned the courtroom cameras. he said, "i would keep an open mind about allowing cameras in the supreme court." that is from robert barnes who covered the supreme court for "the washington post." we are waiting for this technical issue to be resolved. we will let you hear a little bit more of the room and see if that situation does not resolve itself in the next few minutes. [indistinct chatter]
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host: still waiting for that technical issue to be resolved. 13 senators have questioned judge barrett. that leaves nine more members of the committee yet to start their 20 minute rounds. senator blumenthal of connecticut being the first one up ones that technical issue gets resolved. the idea is to finish up the testimony of judge barrett today. 20 minute rounds in this round, perhaps 10 more minutes. we heard the senate judiciary chairman hoping to wrap this up today and will wrap this up today. that may happen into the early evening, may happen earlier depending on if they take breaks or not. during the course of the morning if you have missed it, you can go to our website at to watch those portions. reporting also taking place during this. to "the new york daily news", there is testimony.
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this is from dick durbin -- "those who support the republican platform are going to keep their promise to end the affordable care act. they need that ninth justice and that is what has to be hurried. unfortunately, that is the cloud, the orange cloud, the orange cloud come over your nomination." the words of senator durbin of illinois. "politico," they are offering this from this morning. "under questioning from senator lahey, justice barrett says no one is above the law. when asked to follow up on whether a president has an absolute right to pardon themselves barrett refuses to answer. senator lahey call to responses somebody compatible." senator lahey appearing by zoom. some senators actually in the room to directly question judge barrett. that is what you have been seeing. thatan catch up on all of on our website at
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what is happening right now in case you're just joining us there was a series of questions going into this afternoon. senator blumenthal was just about ready with his round of questioning when a technical issue developed with the microphone. they are working to resolve that and as you can see senators are standing around, and judge barrett's family waiting for the hearing to resume, and the confirmation process to continue. hopefully, tod, have that start in a few minutes. we will show you scenes from the room and let you listen to a little bit as we find out more. [indistinct chatter]
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host: a positive questioning of judge amy coney barrett taking place. we wait for a technical issue with the microphone to be fixed. again, we will resume once the issue is fixed and questioning does resume. you will remember a couple of seconds ago kyle griffin at
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politico highlighted the exchange with the judge and taking a look at the issue on whether people are above the law, including the president. at your pleasure you can watch it on c-span, but here's a portion of that exchange from earlier today. [video clip] claims he hasrump an absolute right to pardon himself. for 200 years the supreme court has recognized common law principle. you can be a judge in your own case. i had to go way back and reread that case to see it. would you agree, first, nobody is above the law? >> i agree.
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>> does a president have an absolute right to pardon himself for a crime? we heard this question after president nixon's impeachment. knownator, so far as i that question has never been litigated. it has never arisen. that question may or may not arise, but it is one that calls for legal analysis of what the scope of the pardon power is. because it would be opining on an open question when i have not gone through the process to decide it, is not one i can offer a view on. >> ok. say no persong to is above the law. i find your answers somewhat incompatible, but you have a right to say what you want.
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host: that is just a portion from earlier today. if you go to the website at, there is the ability to see highlighted portions of the various testimony that takes place during the course of the morning. you can click it and see that specific portion and watch the whole thing at our website at that exchanges our earlier was senator lahey starting off the graham it was lindsey talking to judge barrett and highlighting the importance of her work and her accomplishments, particularly historical as she described it, as she's potentially set to become the next sitting justice. [video clip] >> here is what is important to me. blackburn and senator ernst are two conservative women on this committee. it is a very give-and-take
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society called america, but there was one group in america i think that has had a hard time of it and that is conservatives of color and women conservatives. host: again, that is from earlier questioning. i like iting look is about to resume. [indistinct chatter]
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host: the senate judiciary is trying to figure out that problem with the microphone that he saw earlier just before the questioning from senator blumenthal. where we are at right now is several members of the committee in the room, including the
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chairman, remaining to see what is happening and when questioning can return. as for the person being questioned, judge amy coney barrett, she has left the room with her family. that signifies to what extent these issues still have to be resolved. we will continue showing you scenes from the room as we try to get a sense of when this hearing will resume. stay close to c-span for that. [indistinct chatter]
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host: when it comes to the actual cause of this brief delay of the questioning of judge amy coney barrett fox news offers this tweet saying, "it was her microphone shorting out." that was at the beginning of the questioning of senator blumenthal. as you can see the hearing is stalled wh while they try to
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repair the microphone. we will take you back to the hearing when it resumes. we showed you a bit of the withnge that the judge had senator leahy of vermont. we will show you an expanded interview, or expanded part of the interview, with senator leahy taking place earlier this morning. [video clip] because iabout this know you have spoken much like former justice scalia, who was a friend of mine, but i disagreed with him on many things. he talked about racial impediment. it is not racial impediment when blacks have to stand in line for 10 hours to vote. justice ginsburg dissented and she knew what the consequences would be.
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because ition that is ok for a judge not to close his or her eyes to reality. i asked you last week what a just disparate would do if a president -- justice barrett would do if a president or anybody else did not follow a supreme court decision. you declined. i then asked if the supreme court would have the final word. do you stand the supreme court would have the final word as far as the lower courts concerned? that concerns me and i will tell you i. i asked justice gorsuch in justice kavanaugh those questions. and they said a president cannot refuse to comply with a court order at the supreme court's word is the final word on that matter. just as gorsuch and justice
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kavanaugh said that. i would ask you this -- do you agree the president must follow a court order? the supreme court's word is final or is it only final as far as the lower courts are concerned? >> senator leahy, i'm glad to have the opportunity to clarify from our conversation. both said no man is above the law and i agree with that. i conversed with senator leahy yesterday about federalist 78 which says -- senator lee yesterday about federalist 78 which means we cannot enforce our own judgment. as a matter of law the supreme court might have the final word, but the supreme court lacks control after what happens after that.
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no court has no power, no force, and no will so it relies on the other branches to react to its judgments accordingly. >> i remember the lon young law lunch with the members of the supreme court. he told me what happened when brown v. board of education happened. the court new that was going to be a very tough case. what did they do? waited until they had unanimous opinion because they knew that the president and the congressman would have to enforce their law. let me ask you this. of course the supreme court has no army, they have no force, but they do have the force of law.
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is a president who refuses to comply with a court order a threat to our constitutional system of checks and balances? >> senator leahy, i think the example of brown is a perfect one in this instance because the supreme court an and brown held segregation violated the equal protection because. that was the law but you know there was resistance to that decision. it was not until the national guard came in and forced the governor to allow desegregation that it could happen because the supreme court could not do so itself. >> i understand that, but they made the order. president -- if a president refused to follow, could that be a threat to our constitution? >> as i said the supreme court
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cannot control whether or not the president obeys. abraham lincoln once disobeyed an order during the civil war of the circuit court. a court can pronounce the law and issue a judgment, but it lacks control over how the political branches respond to it. >> let me ask you a specific. president trump claims he has an absolute right to pardon himself. for 200 years the supreme lawt has recognized common which means nobody can be a judge in their own case. would you agree, first, that nobody is above the law? another president, not you, not me, is that correct?
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>> i agree. no one is above the law. >> does a president have an absolute right to pardon himself for a crime? we heard this question after president nixon's impeachment. >> senator leahy, so far as i know that question has never been litigated. that question has never arisen. that question may or may not arise, but it is one that calls for legal analysis of what the scope of the pardon power is. because it would opine on an open question, when i have not gone through the judicial process, i can offer a view. >> ok. you are willing to say no person, not you, not me, not a president is above the law. i find your answers somewhat
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incompatible, but those are your answers and you have a right to say what you want. originalist. can you explain why the framers include foreign and domestic laws in the constitution? >> i think i could speak generally to what is the well accepted view that the foreign emoluments clause is designed to prevent foreign influence in government affairs. it is part of the anticorruption clauses in it? >> could you repeat that question? anticorruption clause in the constitution. >> i do not know if i would characterize it as an anticorruption clause. i think i would characterize it as i did. you can see it is designed to
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prevent foreign countries from having influence. >> i was thinking, at the constitutional convention, governor edmund randolph said. the clause was thought proper in order to exclude corruption and foreign influence, prohibit anyone in office from receiving emoluments from foreign states. companiesd that 200 patronized trump properties. at the same time they were getting benefits from him and the administration. first two years of his $73 billione earned for his properties abroad and an originalist, as you are, do you think these foreign governments fallenpanies would have
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within the framers' zone of concern in the emoluments clause? >> senator, though emoluments clause is under litigation. there is a case that recently involved this question so as a matter that is being litigated, it is very clear that would be one i cannot express an opinion on. it could come before me. >> i have found interesting what stareve written about sta decisis. it seems like you're willing to depart from it and is a justice i assume you can do what you want, but chief justice roberts joined the majority, struck down a louisiana law restricting access to reproductive services even though he dissented in a
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previous case striking down a similar texas law. he said the legal doctrine of stare decisis requires circumstances to treat cases alike. having been on the losing side in the first one he took that position for that case. agree he demonstrated commitment to stare decisis in this case? >> senator, no justice i am aware of throughout history has ever maintained the position that overruling a case is never appropriate. as you probably know there is a supreme court case that said states could criminalize sexual misconduct between same-sex couples. lawrence v texas overruled the case. browbrown v. board of
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education overruled it. cameras shuttering] >> sorry for the interruption. senator tillis. your time is up. [laughter] senator blumenthal. >> thank you, mr. chairman. shortestalmost the question you ever had. >> i was almost an essay, senator blumenthal has not gone. >> i entered some letters into the record before we broke. >> without objection. >> i began my questioning about the third circuit opinion. i believe you would agree that decision applied to misdemeanor offenses. >> yes. i was thinking of the separate
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fiveon the judge wrote for in the splinter decision. >> it really does not support a dissent you wrote -- >> the judge's decision does for the five, but i misremembered the common judgment holding for the pluralities. >> thank you. i want to ask you also, or clarify, the quote that i read to you. it was from a speech that you gave to the hillsdale college about 1, 2019 and it was your dissenting opinion. "it sounds kind of radical to say felons can have firearms." i just want to clarify that was the source of the quote that i read. >> thank you. i was pretty sure i had not written the opinion. it was in the course of explaining that opinions in the
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audience. i was saying it sounds radical, but going on to explain why it was not and the reasoning. thank you for correcting that, senator. >> thank you. i want to go back to another aspect of our conversation because senator graham asked about it this morning. letter that he 2013 by the notre dame faculty for life and specifically a sentence. wee unborn to be protected, renew our call for the unborn to be protected in law and welcomed in life." i ask you about the ivf procedure. whether it could be banned criminally under the mestitution and you said to you could not answer that question in the abstract. you said we can answer questions in the abstract.
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i ask about your legal opinion and position, not your personal beliefs or religion. you understand that point. >> yes. >> i am disappointed that evidently you cannot tell us, or the american people, whether you believe or what your legal position is that ivf can be constitutionally banned. so many americans depend upon this medical procedure for the ability to have children. i also want to ask you, should courts, specifically the supreme court, be deciding the next presidential election? election isdential a matter of putting to the voters to cast ballots. >> presumption should be against the courts deciding an election. it is the people of voters who should decide, correct?
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blumenthal, i think occasions on which courts elections are to protect the american people. voters cast ballots and the courts are designed to protect the right to vote. >> the court should be to everything to keep themselves from embroiling in this? >> gerrymandering is a political question because it is difficult in many circumstances to have manageable standards. >> presumption should be against courts getting involved. let me ask you about precedents. precedentsned super they are cases so well-settled no political actions, no people seriously push for overturning.
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i'm not asking you about what other people may think about these cases or may do about them. these are real cases. education,. board of do you think it was correctly decided? i want to clarify that point. >> sure. as i said to senator graham when he asked me that question i have spoken on that before in the lecture that i give. >> as you sit here, correctly decided? >> yes. you about loving -- the loving case. do you think that was correctly decided? >> loving follows directly from brown. brown is correctly decided, loving as well. >> it was correctly decided? >> it was. >> thank you. let us talk about griswold.
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correctly decided? >> well, senator blumenthal -- >> i know you give an answer -- excuse me for interrupting. >> yes. >> you gave an answer to senator kunz, but this is more than academic. you said it is very unlikely to maybe, but allnd the more reason that you should be willing to tell the american people it was correctly decided. i asking about your legal position. would you have been in the majority? >> i have a couple of things on that. one is that the reason i expressed a view on brown to senator graham is that i think what i have said in print, either in my scholarly work or opinions, is fair game. i have said in the past and the lecture i have given repeatedly that brown was correctly decided. i think that was fair game and
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loving is indistinguishable from brown. >> loving involved interracial marriage and griswold involved a ban on contraception, a criminal turn involved eisenstadt v baird. these are fundamental cases and i'm asking your legal position. mindt to kee you to keep in how many people are listening and watching because they may take a message from what you say. they may see what you say and be deterred from using contraceptives or may file fear they could be banned. >> senator blumenthal, the position i have taken is whether a question is easy or hard. i cannot offer an answer to it and i would be surprised if
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people were afraid birth control is about to be criminalized. i said to senator coons -- >> you may be surprised but chief justice roberts said, "i agree with the griswold court's conclusion that marital privacy extends to contraception justice kennedy. if hypothetical case were to be imagined that better fits within the privacy i believe the constitution protects, i could not think of a hypothetical better than griswold. justice thomas said i believe the approach justice harlan took in determining the right to privacy was the appropriate way to go." he reaffirmed eisenstadt v baird. stunned that you are not willing to say an unequivocal
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yes, it was correctly decided. held thev texas which government cannot criminalize gay and lesbian relationships, was a correctly decided? >> senator blumenthal, again, i have said throughout the hearing on thet grade precedent words of justice kagan. >> you cannot give me a yes or no answer? forgive me for interrupting but my time is limited. >> i cannot give a yes or no in my declining to give an answer does not suggest disagreement or agreement. it certainly should not suggest -- >> i am asking your legal position, judge. not your moral position, not a policy position, not a religious faith position, a legal position. correctly decided? senator, every time you ask
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me whether a case was correctly decided i cannot answer the question because i cannot suggest agreement or disagreement with precedent of the supreme court. all of those bind me as a seventh circuit judge and if i was confirmed, i would apply stare decisis to all of them. >> think of how you would feel as a gay or lesbian american to hear that you cannot answer whether the government can make it a crime for them to have that relationship. canher the government enable people who are happily married to continue that relationship. think about how you would feel. >> senator, you are implying i'm poised to say i want to cast a
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-- you are pushing me to try and violate the digital canons to offer advisory opinions and i will not do that. 2016 anourself wrote in article that you cowrote with john nagel called "congressional original iism." "answering hypothetical questions about particular precedents is par for the course." course becausehe americans want to know your legal positions on these issues and they have a right to know. they deserve and need to know. i am surprised, and i think a lot of americans will be scared,
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by the idea that people who want to simply marry or have a relationship with the person they love could find it criminalized, could find marriage equality cut back. americait would be in were i would not like to what -- an america i would not like to live in. >> to say that is what i want to create is not based in fact a record. that quote you read to me talked about being par for the course for those questions to be asked, but did not say whether it was appropriate for nominees to answer. >> others have answered the same question and i'm disappointed you will not. let me move on to another area. last month "the new york times" published a series of bombshell reports dealing with the current state of the president's finances. there were a lot of revelations
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including that the president himself is responsible for loans totaling $421 million, most of which is coming due within four years. that amount of personal debt makes the president vulnerable coercion.e, his phone or ability makes him a -- histo our national vulnerability makes him a threat to our national security. he only paid $750 in income taxes in 2016 and 2017. i want to ask you about a fact that is critical constitutionally. during its first two years in his first two years in office he received money from foreign offices. say i lead a lawsuit
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involving 200 of my colleagues challenging the president's receipt of those foreign benefits and foreign payments as a violation of the emoluments clause. well other payments and benefits he received from india, afghanistan, kuwait, malaysia, saudi arabia, slovakia, thailand, and more in violation of the emoluments clause. we have been talking about originalism. the emoluments clause was the premier anticorruption clause in the united states constitution. as edmund randolph of virginia clause was intended to "prevent corruption." it "prohibits anyone in office from receiving or holding any
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emoluments from foreign states." led was denied certiorari yesterday by the united states supreme court. the d.c. circuit court of up ruled against us on the limited technical issue of standing. it did not deal with america. i hope that you will keep in correctionnger of and the need to give citizens laws thato enforce prohibit corruption. nobody is above the law. you have stated that position and enforcement of laws that prevent corruption is vital. is that the president, any president, must be held accountable.
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do you agree? >> no man is above the law. i agree with that as i have stated clearly before and i also want to assure you, senator blumenthal, i will apply all laws and come to an open mind with all laws including anticorruption. >> let me ask you about a topic that has not risen much. climate change. senator kennedy asked you about it late in the hearing yesterday and your answer was, "you know i am not a scientist. i have read things about climate change. i would not say i have firm views on it." do you believe human beings cause global warming? >> senator blumenthal, i do not think i am competent to opine on what causes global warming or not. >> we all have views on it. i'm looking for your opinion. >> i do not think my views on
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global warming or climate change are relevant to the job i would do as a judge nor do i feel like i have views that are informed enough. i am not really in a position to offer any kind of informed opinion on what i think causes -- >> i understand and i apologize for interrupting. do you agree with the president on his views of climate change? >> i do not know that i have seen the president's expression of his views on climate change. >> ok. .let me ask you on another area are you aware of the supreme court that is called "shadow docket? " . >> i am. >> this docket consists of cases that are decided, often
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extensions of orders, without an opinion, correct? >> correct. >> as a matter of fact and the denial of certiorari in blumenthal versus trump yesterday there was no opinion providing the reasons they did so. we do not know how many justices supported the decision except that there must've been at least five and despite reasoning from lower courts, which we issues,ed, about the there was no opinion. the same was true of the census. don't you think there should be transparency on the part of the supreme court? in theink that the court dockete -- the shadow has become a hot topic in the last couple of years, but even
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when i was clerking on the court in 1998 it was not typical for the court to issue opinions on why something was denied although sometimes there were dissents that have opinions. as far as i know it has never been a routine practice. >> my time is limited, but i want to leave you with a very strong message because increasingly the court has turned to this shadow docket. in fact it is growing larger. it is up to 6000 cases every year where it rules without an opinion and without disclosing who voted which way. that strikes me as "d."emocratic with a small it only decides 80 cases on the merits docket which is smaller than when i was a law clerk and probably when you are a law clerk as well.
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accountable and less transparency. i am going to conclude here. i want to say we try to bring into this room real people who are going to be affected by your decisions. some of them will lose their coverage. in fact, millions of americans, including connor, will lose his coverage under the affordable care act if he is denied the protection to people with pre-existing conditions. legislative activism from the of activisme kind that i fear you will bring to the bench -- [indistinct chatter]
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>> hello? hello, hello, hello? [indiscernible]
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>> i am deeply disappointed you are unable or unwilling to state your legal position. [indiscernible] this administration has taken inferred rule to a new level. i think that other nominees -- i urge the administration to nominee --he [indiscernible]
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>> thank you, mr. chairman. [indiscernible] judge barrett, i have a question for you. [indiscernible] [indiscernible] >> if five minute or 10 minute break. or 10-minuteute break. [indiscernible]
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[indistinct conversations]
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[indistinct conversations] >> we started out with the ability not to hear the person being questioned and as you have seen and to an extent did not hear, now you could not hear directly from the senators with continuing microphone problems during the second day of questioning. to deal withting technical problems so we are trying to see where that is. they may resume at any moment and when they do, we will go back to them.
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microphone checks are currently being done in that room and hopefully in the next couple of minutes, they will resume with the questioning by the senators. in the meantime, to show you an example of tweets in light of
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the confirmation hearing, someone will -- we will hear from later on, kamala harris, allowingident nominee trump to determine who fills the seat of ruth baiters -- ruth bader ginsburg, a champion for women's rights and a credible voting decisions that have is -- that have sustained the right to choose, poses a threat to copperheads of hundred up -- reproductive health care in our country. is will remember it yesterday and even a portion of today that senator whitehouse charting dark money as he calls it of certain groups relating to the confirmation process of judge merrick. sheldon,gain, representing the chart here showing yesterday.
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this, in the words of keep their, going to promise at the end of the affordable care act. that is the cloud. it is over your nomination. orange cloud over your nomination. james home and adding this. when it comes to the exchange of questioning, responding to a softball, amy barrett could only remember four of the five freedoms enumerated in the first amendment. she forgot the right to protest. you can read the tweets about these events taking place. you can watch it all in total if you want. another one, another day
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tomorrow. future panels of invited guests by both sides of the committee. talking about the importance of and other civil rights protected by the constitution and civil law. meeting tomorrow as far as the markups and next steps when it comes to this portion of the confirmation process. room, we will see where they are at and we take you to that now.
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as we wait for technical issues to be resolved in the senate, we will show you a portion of the exchanges early today. utah, some topics, that of the idea of personal connections to
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idea of buffer zone laws. here is a portion. >> without objection. freedomt to talk about for a moment. i'm a member of the church of jesus christ of latter day saints and we are no strangers to religious persecution even in this country. on october 20 7, 1888, we were ordered exterminated. it was not nice but i assume he had his readings -- reasons. he thought we were heretics. we try to be really nice heretics. the late 1970's that the governor of missouri lifted that band. i am sure the attorney general attorney general would have lifted it for us if it had not
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been by then. religious liberty has been interesting to me for that reason and also just as a lawyer. lawyer,father, also a worked regarding the religious freedom restoration act. boss was someone i worked with establishing a first of its kind religious institution practice group a couple decades ago. catholics, like members of my faith, have been subjected to religious persecution from time to time. in many cases, were directly targeted through provisions work into a number of state constitutions, really for blatantly anti-catholic purposes. had as theirnts purpose the restricting of public funds going to certain
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religious institutions, including schools. earlier this year, the supreme versus montana department of revenue struck down -- struck another blow against amendments by reinforcing their earlier decision in the trinity lutheran case. would you discuss briefly the supreme court's recent jurisprudence regarding these amendments and how they intersect with religious freedom? >> sure. the supreme court's recent has the principle that while we have to be careful about the establishment clause, so there is a line of cases saying a state or government ,annot establish a church
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cannot be discriminated against, excluded from public programs simply because they are religious. >> during your time on the seventh circuit, you have been to handle some cases involving religious freedom issues. in joined a majority opinion that case, upholding the freedom religious school and its authority and discretion to hire teachers at its school. ruling was challenged before the u.s. supreme court but it denied in that case. nonetheless, a 7-2 majority of the supreme court and the young lady of guadalupe a case.
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ended up essentially adopting a position similar to that, which you joined, in the case i just mentioned. can you talk to us a bit about that opinion and its application of the exemption? >> sure. described it -- it is an exception it gives religious hiretutions exceptions to teachers who are ministers. what this requires courts to do is to decide who is the minister. , there might be more obvious questions like .omeone who teaches religion those would follow more in the
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heartland. it gets a little more difficult the catholic school in our lady of guadalupe, who has a teacher teaching math. and of course has to come up with a test to decide whether a person -- or not. what our lady of guadalupe says it is a multifactor test. is not just that a teacher teaches math such as fruit -- religion. the teacher spent time teaching and saying jewish prayers and the school considered it part of the teachers duty to form the to teach them about shee prayers so even though spent other time in the curriculum teaching those
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matters, they viewed that as part of her job. already, a lot of deference to the school characterization -- characterization, not to encourage discrimination, but to protect religious freedom. so the teacher may teach math but also pray in the morning, attend math during the week, and is considered by the school -- >> we can press on. question edge, thank you. the u.s. versus lopez, hobby they versus burwell, where correctly decided? to put your microphone on. >> is it working now? ok, good. express a view on the
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correctness of any precedent. >> it is not just cases favored by democratic friends. you are taking a consistent position and i think the american people should understand that. thank you. in wake county. in north carolina, you had to for a permit for a handgun in north carolina. refusedme, the sheriff to process handgun permits. he has subsequently reversed the policy and it is no longer an active case. it would seem to me the sheriff for seconda decision amendment right. how would you evaluate a case like that? >> i would look at the laws and
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the amendment would be relevant there. >> former qualify than you to take it forward. i expect it will if the same position is reimposed on lawful gun owners. i thought about this when senator hawley was asking a similar question. about a month into it, everyone understood we had to understand how covid was affecting us. to six weeks later, we saw the peaceful protests, some of which were hijacked and we have seen them widely allowed by certain liberal governors and other elected officials in towns and counties, but at the same time,
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they prevented churches from being able to worship. i think religion and protests are two of them. like anyel governmental entity has a right on the one hand to allow these protests to occur, and on the other hand, to prevent worship and temple synagogues, mosques, or any place of worship? >> some have gone up on the supreme court in a couple of different orders. those are not things i could comment on. >> are you able to a pine at all on how you would go about evaluating the arguments? >> sure. whenever you have that kind of restriction, the general position is the government has a compelling interest in
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responding to -- law tolook at case address a public health crisis. this was clear in my interchange with the senator, we look at case amendments and in the that i have, it involved the first amendment looking at speech and free exercise clauses of those amendments. those come into play as well. >> thank you. my daughter was thrilled you signed the two constitutions for my granddaughters. they will cherish it someday when i can explain what it means. other isree and the eight weeks. i really enjoyed that discussion and it is something i would like you to share with the committee. you have stellar academic
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credentials. you have a stellar record as a professor and have done an and you have been a great mother and wife. you have so many options and there are so many things you could be doing. the first confirmation hearing was not pleasant. you knew this would be more challenging. we met, whywhen would you do this, knowing how it would play out, knowing you would be unfairly treated, and i think to a level two may some of your constitutional rights questionably denied. why are you doing this? why not say thanks but no thanks and leave it to someone else? i said to senator graham this is an
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excruciating process. the knowledge that people will say horrible things, that you will be mocked and children will be attacked. one might wonder why any sane person would take the risk unless it was for the sake of something good. like i said yesterday to senator graham, i think the rule of law and its importance in the united states, the role of the supreme court is important. it is a great good. it would be difficult for anybody in this seat. the difficulty will be present for anyone. i think it would be really cowardly and i would not be answering the call for my
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country and the way i was asked. children were part of becauseon not to do it my son got very upset yesterday during questioning and we had to .all him in the car i'm surprised he stuck it out as long as he did. he got very upset at the and some of the other things happening to the children in the process. ways, to you that in many the children are reason not to do it but they are also a reason to do it. we are to protect institutions, freedoms, and the for society, if we want that for our children and children's children, then we need to participate in that work. i think you are an extraordinary role model. a lot of people are watching this.
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i hope everyone of them concludes that you are a courageous person and a public servant. with your experience, you could move out of public service and do virtually anything you wanted to and have more time with your family along the way. the fact that you are willing to serve is an extraordinary testament to your character and your integrity and i appreciate you for it. the other thing i want to get back to his on the issue of abortion. is marketable how may times my colleagues on the other side of the aisle have challenged you on this matter and in the same advocating fore activism. in one breath, they want to secure a certain supreme court precedent, and on the other, they want to potentially overturn it. about a policy i
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mentioned yesterday. partial-birth abortions that i thought were horrific all of my life, especially since i how that premature granddaughter of mine three weeks premature. if a case as a matter of state and federal law, senator graham's bill, how would you go about evaluating some laws that would prevent late-term abortions, how would you >> i would look at all of the precedents.
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the most recent cases of the abortion line. if i were to have to decide a case like the one senator graham referred to, it would involve looking at their application to the particular contours of the law that was before me. >> thank you. i will go in a slightly different director -- direction. i was talking to a senator on a subcommittee on intellectual property. on a bipartisan basis and i have to thank senator blumenthal for being one of the more active members of the committee. i think it is an area where we are working on a bipartisan basis, things that the public seldom sees. i know district court opinion sided with the federal trade itmission that found violated antitrust law. circuit, they
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overruled that decision. opinion, they said qualcomm was a company just asserting economic muscle with eager, imagination, devotion, and ingenuity. i am interested in your thoughts generally with antitrust law. where should the courts draw the the where company violates -- or qualcomm was characterized just asserting economic muscle with vigor, imagination, devotion, and ingenuity. >> i have not followed that case and i am not aware of that case i wouldinth circuit but be venturing out if that territory if i tried to articulate a line to draw is a complex area
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with a lot of regulatory law as well. sen. tillis: moving to another area addressed on the committee on intellectual property. the subcommittee, i'm interested in protecting intellectual property. in recent years, we have seen a thatf supreme court cases waited in producing a series of muddied thet have waters. in some cases, i agree with the decision but i worry about the methodology to get there. i am curious about your thoughts and we have talked about specific cases we could aggregate if we get bipartisan support and we are in those discussions.
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thoughts on the spring court on eligibility and do you think the court should clarify the method they use to reach their opinion? >> without commenting on any particular cases, which i have to be completely honest and confess to you that i cannot think of what particular cases you are thinking up but without commenting in any event, i would say that clarity and decision-making is always something the court should strive for. i try to be attuned to weather it gives good guidance and then offer those in compliance with the law. i think clarity is a virtue in this context. working on a are bipartisan basis to do it on our part. copyright law is another area we focus quite a bit on.
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we had a witnesses say current and a tiktok laws world. a lot of changes have occurred we feel there is a need for us to move forward with clarity and protections. court has answered questions about whether copyright law as new technology like cameras, mute -- moving pictures, the list goes on. court think the supreme is the best institution to answer these questions? >> most of things you are identifying sounds like matters of policy to me, matter best addressed by a democratic the .lected body >> i agree and i think it is a complex subject. i am glad to hear your opinion and i have to think senator
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blumenthal and others who are on the subcommittee, work well and hope to make progress. i think senator blumenthal will ask you about courts getting involved in elections but for someone goes out to the cyber world and says nine people are going to decide the outcome of the election, nine votes versus tens of millions of votes being cast now will be cast by november 3, what you will be confronted with his various lawsuits that may come in with various changes but at the end of the day, what role will the court play if any in this determination? nine people will not elect the president regardless of who wins the election, but nine people have to consider various cases. say that your to role will be determining whether
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or not every single american who wishes to vote had their vote recorded and was given proper access to make that vote? thehat fundamentally what court will decide? >> it is impossible to predict what particular aspect would be challenged but laws that would be invoked or text the right to vote that keep elections fair. those are the kinds of issues that come up in past election disputes. the court would not be electing the president. it will be applying laws designed to protect the right to vote. fork some want to thank you in a discussion that you believe that every single person in the country should
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have a right to vote and should be able to do that without intimidation or undue burdens. i heardant to make sure you write and your responses to other questions, that you feel strongly that every american should have safe access to the vote. i hope every registered voter in the country votes on november 11. do you agree with that? >> of course. >> thank you to your family for enduring the challenges you have . thank you for your integrity. i look forward to supporting her nomination. >> we are going through the hearing as though it is a normal hearing. americans dead. no pandemic relief bill insight for the american people.
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the fate of the aca at risk. democrats of the committee continue to ask you questions to let the american being putw that you on the screen court would dramatically flip the balance of power to the court. further to the right. not a fair impartial body we want the supreme court to be. you told ranking member feinstein yesterday, if there were policy differences were policy consequences, those are for the body for the court is a question of adhering to the law and leaving the policy decisions up to you. that would be us in congress. a distinction i described yesterday as artificial can be seen in a case from earlier this
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year. you considered the trump administration's dramatic change through the public definition. incomefor low and -- low immigrants and residents. there were numerous, unexplained and serious flaws. you issued a 40 page dissent calling the rule reasonable. you would have allowed the trump administration to limit low --ome immigrants who might you call this reasonable despite the harm you knew it would inflict. has approximate 3.1 380ion people including 8000 noncitizens and 341,000 children with an immigrant parent. it estimates over 140,000
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-- as a result of the public charge rule. about one million people to 3 million people have gone without medicaid coverage due to fear of consequences from the application of the rule to them. dana can tell you about a single mother who did not want to enroll her artistic u.s. citizen child in services. dana can tell you about it woman in her third trimester who sacrifice prenatal care. that rule has intensified as andle enter testing treatment ensuring people will be sicker, more likely to die and more likely to inadvertently the virus. works to lessen the devastating impact of the role. which includes working with one
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immigrant seriously ill with covid-19 symptoms and unwilling to get tested or treated for fear of their status. the trump administration connection tothe reduction in public benefit food insecurity, housing security, and increased cost, it brushed off the impacts and refused to alter the rule. you also acknowledged that people were enrolling from other programs out of fear. you not only admitted to the enormous but found it unsurprising. his affect nearly one third of all low income families with children. just to be clear, do you believe these are policy consequences that are the job of congress to fix, not the courts to consider?
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ms. barrett: the dissent that i wrote in cook county went to explain statute that those currently receiving benefits were not affected by the public charge rule. sen. hirono: excuse me. i read your dissent. theow you try to show people who would be impacted by the rule but you also there are a that lot of people not impacted by the rule who disenroll because of the fear. my question to you is whether those kinds of events, which you foresaw and even acknowledged, if you think it is appropriate for the court to consider those? ms. barrett: i was trying to answer before, yes, i said there
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was fear and there was disenrollment, but that the rule did not apply to anyone currently eligible for benefits. the question of disenrollment and the effect of the rule would be relevant at the stage of arbitrary and capricious review. analyzing the first step, interpretation of the statute, i said i would not reach the question in that case so i said in my dissent that it would be better to send that back to the district court on the question of whether the rule on the evidence that the agency had , including its treatment of state and local governments. to be deemed the rule reasonable. i take it you stand by your dissent. ms. barrett: i stand my -- by my dissent but there is a difference between reason and arbitrary and capricious under
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the administered of act. sen. hirono: but as you noted, the apa was not even brought up so that was not an issue. everyone seems to agree this rule is having a chilling effect nationwide among families with access to health care, nutrition, food, housing, benefits congress meant to make available. i would say from your response and the response you gave to senator feinstein about the distinction you make between it seems to me you do not give much credence to albeitect of this rule, that the rule did not apply. have beent: it would a question of arbitrary and
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capricious stage. the laborious studies i did responded to the arguments the party has made and the complex statutes congress has passed in this area. i am sorry. i do not think you even mention arbitrary and capricious standard. let me move on. yesterday, senator graham asked you how unlikely it would be too overcurrent -- overturned supreme court rep -- precedent , "judges cannot just wake up one day and say i have an agenda, i hate guns, i like abortion, i hate abortion, and walk in like a royal queen and impose, you know, there will on the world. you have to wait for cases and controversies." but i do not think that is entirely accurate picture. justices have used opinions addressing various issues, particularly the -- those
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undermining civil rights even inviting challenges to a long-standing precedent. morning,plained this the supreme court overturned a 41-year-old president. talk about reliance on a president. this affected public sector and justice alito engaged in a six-year campaign and i have a chart to show you that he was very persistent in signaling -- in 2012, his first signal that he wanted conservative antiunion groups in his decision brought inups case-by-case the criteria to
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layout. by justices thwarted scalia's death which left a four for decision -- a 4-4 decision. he had to wait until senator blocked merrick garland's nomination so the president could appoint neil gorsuch. pretty much the minute justice gorsuch got on the court, the court finally overturned abood. now we are seeing the same signaling. i mentioned this yesterday. the right of same-sex couples was recognized to marry. justice thomas and justice alito issued a sharply worded case.ent about a
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issuease refused to marriage licenses to same-sex couples. in 2012,ice alito justice thomas, joined by justice alito, signaled to rollback a supreme court precedent that they believe with their understanding of the constitution. for the right to same-sex marriage even though that right and called it a problem that only the court could fix. judge barrett, you said judges have to wait for cases and cannot have an agenda but here we have an example of sending out signals. take a look at
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precedent. cite one case where you are also sending out a signal. two court cases. without the right to vote and raising concerns that you view their right to vote to be more limited than the right to own a gun. , in that case, you jointed decision have upheld an abortion clinic buffer zone law. apply the law under a clear supreme court precedent.
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the decision went even further. it signaled a strong .isagreement with the precedent you directed the plaintiffs to seek relief in the u.s. record. the earlier today, a senator showed you a chart of more than 100 cases were justice ginsburg was in the majority and justice scalia was in defense. my republican colleagues is aware of this wanting to be in the supreme court so badly.
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in 2016, after justice scalia died, you described him in a tv interview as the staunchest conservative on the court. is that correct? ms. barrett: i can imagine i said that but i do not recall my exact words. you.hirono: i am quoting you recognize replacing the staunchest conservative on the court with someone nominated by president obama could dramatically flip the balance of power in the court. that is a quote from you. position ofin a dramatically flipping the power of the court. your nomination would be more and with your confirmation, the court will be transformed into the most conservative court since the 1930's, with a more aggressive
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conservative agenda. nomination, your you described justice scalia. it appears you may be even more to the right of justice scalia, whom you described as the staunchest conservative. it is important to look at what kind of impact he would have had on more recent supreme court decisions. when justice ginsburg served on the court, numerous partisan decisions but what is noticeable are the more recent five to four decisions after justice kennedy, in the middle of the ideological spectrum, was replaced by a much more conservative justice. robertsstice conservative views were now in the middle of the ideological spectrum of the court. recent familiar with the 5-4 decisions were chief justice roberts formed four liberal
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justices to form a majority? i do not know what decisions you are referring to. sen. hirono: there are a number of them i will describe. these 5-4 cases touched on issues with your nomination. these include protections for -- daca, the right of criminal defendants, covid-19 safety measures, protecting agency regulations, a wide range of predictions from veterans benefits to clean air and water. daca decision i mentioned in june of 2020. justice ginsburg was part of a 5-4 majority that blocked the trump administration with efforts to expand the daca
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program. that would have thrown the lives of 800,000 recipients and their families into chaos. those participants would be facing deportation. that includes over 200,000 recipients risking their lives on the front lines of the pandemic to prevent the health and safety. a 5-4 decision was issued to block the trump administration's anti-immigrant policy of adding a citizenship question to the 2020 census. something near and dear to president trump. justice ginsberg was replaced in that case -- resulted in excluding many immigrant families from the census. -- itould not only having would have decreased its share in the distribution of 1.5 trillion -- one point $5
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trillion in federal resources. yesterday, we saw with the court looks like without justice ginsburg on it. it allowed the trump administration to end the collection early despite the ongoing pandemic and the fact that they were not getting an accurate census count by ending this early. federal --mean fewer federal resources where there is not an accurate count. that could mean that trump may use the numbers to determine representation in the house of representatives and state and local governments. that trump isw demanding that those numbers undocumented immigrants. even if the census requires to be counted regardless of immigration status. president trump repeatedly accused chief justice roberts of
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betraying conservatives in the court decision on health care, doctor protections, and other rights. he made it clear he nominated you to do the job he thinks chief justice roberts and republicans failed to do, strike down the affordable care act, and rollback critical rights and protections. been asked about the consequences of the decision and it was foreseeable that you would have a lot of states passing restrictions, basically loss. do you believe that voter or discrimination in voting currently exists? the voting rights act that offers protection in section two of the voting rights act, which is not an issue in shelby county, protects voters from any kind of measures that would discriminate on the basis of race.
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sen. hirono: do you think the justice department is pursuing aggressively those? past what iozens would characterize as voter suppression loss. that is obviously happening. case, justice thomas went further. of the framework allowing congress to come back with formulas that enable clearance, but justice thomas went further and said get rid of the entire framework. congress, you're totally out of the picture. this is the danger we are facing with your being put on the court. one more question. having three
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justices who worked on the republican side, bush v gore, you're one of those justices if you should be confirmed, creates an appearance of conflict involving a president who nominated you? and i would like a yes or no answer. >> answered that question before and said any question of whether there is an appearance of impartiality problem would be one for our justices involved to be considered under this statute. >> you think there might be a conflict and you would have to go through ms. barrett: -- anytime -- you're asking me to make a decision about whether i think myself and two people who are not yet my colleagues should recuse in that situation. an appearance was of conflict. i believe the fact that you would even bring forth a refusal
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me that voters may decide there is an appearance of conflict. thank you. >> thank you for being in front of us. welcome to day three. it has been quite a day. because we have so many members that have been busy talking over you and interacting, partying me for -- pardon me for interrupting you, telling me their time is more important than hearing your answers. if there is anything you would like to further explain, i would like you to explain at this time. >> the only thing i want to clarify insofar as the center is suggesting, i think the work some of the justices may have done on bush v gore is reason to recuse but it is not what i meant. i meant that in every case,
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judges have an obligation to consider the issues and may conclude no. saying was not to take a position and i want to make that clear. >> thank you for taking the time. over the past number of weeks since you were nominated, certainly since the hearing began, there has been a lot of discussion about the legacy of was bader ginsburg, who really a trailblazer. democrats claim that you would not be an adequate replacement for justice in spirit because you do not march in lockstep with her judicial philosophy. the way i see it, how -- you are both trailblazers and both accomplished professors. respected and revered and with strong endorsements from the left in the right and you are both amazing and both served in
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private practice. ofe you, she was a woman strong religious faith. you both have a very impressive track record on the judicial bench. asking women to march in lockstep with one philosophy is exactly the wrong kind of message that we should be sending to women, especially to young women. what i often hear from the left, many of us on the right, senator blackburn hears this, many others hear this, that because we do not hold the same views that those on the left to do, we should not be serving in the roles we are in. that is what the left is projecting on you. it is because you are not lockstep with what they want to see in their nominees. that you are not worthy of serving on the bench. i do not believe that. i do not believe that.
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that should not be a litmus test for the supreme court and it should not be a litmus test for any woman in any job. any woman in any job. diversity of thought and an ability to pursue her dreams is exactly what the women trailblazers of the past fought for. if suffragettes had not been willing to go against the men of their time, certainly none of the women sitting here would have the opportunity to question you today. what would you say to those who claim you are not an adequate replacement for ruth bader ginsburg because you do not with herlockstep judicial philosophy? i think judicial philosophy is inappropriate and important topic for this committee to explore the hearing and i think each senator has a
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responsibility when a nominee comes before you to ask what the judicial philosophy is. i think disagreeing with the judicial philosophy that i or another nominee had, is perfectly understandable grounds for voting no because you may have a different vision for what a justice or judges to do so i have no problem with that. it is how senators on this midi have viewed their role. on philosophical grounds, i that is what part of this hearing should be about. i think there is room on the court. i do not think it is just in terms of women but for all members of the court, there is room for different approaches in the constitution and they should not be broken down into partisan boxes because judges are not
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.artisan they get appointed and confirmed by political branches, but judges do not have campaign platforms and a number of times through the hearing, judges should stay out of politics. these philosophies are not designed to yield particular results. is room for different philosophies. different ways of thinking about it, sometimes, you have the same result and it is not necessarily , one being a pragmatist and one being originalist, june -- do not get up in the same place, they may just get there in a different way. would identify -- identify as originalists. they could start up at the same place and i would suspect they
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would end up in different places and i would give examples of that. forink it is healthy different approaches to the constitution and to have debates . >> i appreciate the answer. as we have sat through these discussions, i've heard a number of my colleagues bring up toferent descriptive words describe you. i would like to review a few of those right now. humility, dignity, independent, exceptional. i think you are exactly what we atuld embrace, and as i look future generations of men and women ath might -- that might want to serve on our supreme court, i hope that they would
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espouse those attributions as well. and, while we have this national stage, i would like you judge barrett to share some grains of wisdom for those future generations. what advice would you offer to those who are just now embarking on their legal career, and how should they define success and find motivation to, you know "leave their best on the field," if you will at the end of each day? judge barrett: i think. i love the practice of law. to know, some professors go the academy because they do not enjoy practice that much. i really enjoyed practice and when i went to the academy enjoyed that to especially when you are beginning a legal career, you write an early stage in life and you have fewer family obligations and maybe more energy. i guess i would just say, live
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life to the fullest. seize all the opportunities you have and do your best. but, at the same time, never let otherrowd out all of the precious things in your life like friends and family and faith and exercise. i had a law professor who told first years who were very anxious about exams to make sure you gave yourself time to take a run or go work out. i think all of those things that make up our lives apart from work cannot be shoved aside. at the same time, however, you should seize opportunities and pursue them while keeping in mind your whole person. sen. ernst: the whole person, thank you. when we sat down, judge barrett, i told you about my daughter libby. .he's studying pre-law right now. and she sent me a text this
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morning as we were in this room. an articled, "i have on judge barrett." we had this discussion of fisking a while back. i had to ask her what it was. and i googled it to make sure i had the right definition. but fisking, the the of shredding a written argument sing theline, parasi meaning and providing counterpoints. their instructor provided the class different articles about you, and they have to go through no and fisk the article. and she said. here is the whole text "i have to fisk an article on judge barrett and honestly what an amazing woman." that just want to share little bit of encouragement
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that, while there may be others on this committee that disagree, i would share with you that there are thousands upon thousands of young women out there that see the role that you set and have went through all of those -- i went through all those descriptive words that my fellow members have shared to the course of these hearings, but those thousands and thousands of young woman that as. someone they can aspire to be she isn't a very diverse group of friends, they are racially different. they are religiously different. but they are all young warriors, all of these young women. but they are very excited to have you in front of us. i would say that many of her friends are not republicans. they would affiliate more with democrats as well. but they do see you as someone they can aspire to be.
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so, thank you so much first setting such a great example for women of all different thought processes, and what words of encouragement would you like to share with the young woman like my daughter libby. judge barrett: i think i would e --to be confident, to b one thing i have often told my own daughters is that you should not let life just happen to you, or lead you along. you should identify where your objectives are and identify the type of person you want to be and make deliberate decisions to make that happen. my dad used to tell us not to make a decision is to make a decision. make decisions. be confident. know what you want and go get it. sen. ernst: that is fantastic. and, you know, i have four tene ts i live by or pillars of
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success. andership, service, -- gratitude. so, i would like just to give you a couple of minutes. you have already stepped into a few of those. you talked about service and what it means to serve your nation. and you actually went through t risk in deciding to subject you and your family to this process and decided for the greater good. i want to give your moment to express some gratitude as well for those that have helped you get where you are today and share may be how they mentor do you along the way. judge barrett: sure. was probably, as so many people my parents are that i -- for the ones i have to express so much gratitude for. they've encouraged me
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every step of the way. they have encouraged me and loved me and shaped me and giving me the values that i have. now that i have my own family and my own children and they have helped me by supporting me with my children and reinforcing what they taught me. my professors in law school. we heard the other day from 'hara who was gracious enough to introduce me. i had so many wonderful professors when i was in law school. i had so many wonderful colleagues when they joined the faculty. when i was in practice i had so many lawyers that i learned from so much. and we talked at great length about justice scalia, the judges for whom i worked. i got to say it takes a village to raise a child and i think it takes a village to mentor anyone into who they become as an adult. so, i'm very grateful for the whole village i had that brought me to this point. sen. ernst: wonderful.
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thank you very much, judge barrett. sen. graham: senator booker? ker: mr. chairman, thank you very much. your honor. judge barrett: i'm good. you? sen. booker: i'm sure part of that smile is that i'm am the second to last democrat. i want to jump right in because i actually found some of your oesponses to senator hiron really compelling around the public charge issue and that you dissented in the case and if i can read it you wrote at the bottom "the plaintiff's objectives reflect disagreement with the policy choice and even self,atutory exclusion litigation is not the vehicle for solving policy disputes because i think the dhs's definition is a rational definition of public charge." but you were saying to her which i found compelling that you were still believing -- leaving the
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door open for it to be capricious. was that the word used? judge barrett: yes. under the administrative procedure act paradise said at the conclusion of the dissent because the majority breached both, i said i was not dissolving that issue -- resolving that issue because it had not been briefed before us expressing an opinion. i did leave open the possibility that the rule be arbitrary and capricious. sen. booker: i am trying to read all of your cases - has been a herculean task. just gomaybe i can back to asking a simple question that i hope you feel comfortable answering. what i think is an obvious answer. you think it is wrong to separate children from the parents to deter immigrants from coming to the united states? judge barrett: senator booker,
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that has been a matter of policy debate and obviously that's a matter of hot political debate in which i cannot express a view or be drawn into as a judge. sen. booker: so, i respect that a lot but i think the underlying question is actually not hotly debated and just maybe i will answer, ask it one more time. do you think it is wrong to separate their child from the parent not for the safety of the child or parent but to send a message? as a human being do believe that that is wrong? judge barrett: senator i think you're trying to engage me on the administration's order and separation policies -- border separation policies and i cannot express a view on that. i am not expressing ascent or descent with the morality of that position i cannot be drawn into a debate about the administration's immigration policy. sen. booker: of course, the question does have implications but a very simple, as i said yesterday that we are debating
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yesterday that, basic question is of human rights, even decency and human dignity. a'm sorry that we can't have simple affirmation of what i think most americans would agree on. but maybe i can jump back to something you began yesterday. i asked you whether your fruit were familiar with studies conducted by the sentencing commission. do you remember? judge barrett: yes. i said i was generally aware, we talked about systemic racism. i'm generally aware that there have been studies done. sen. booker: the u.s. sentencing commission provides nonbinding federal guidelines to federal judges which show that some of the racial disparities on the criminal justice system, they talk about that considerably. my colleagues and i am both sides of the are worked on criminal justice reform discussed a lot of them and some of those, is i discussed yesterday, were examples of federal prosecutors are more likely to charge black defendants who carry with
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offenses that carry harsh mandatory minimum sentences. they are more likely to charge black students, black defendants that white defendants and black defendants were subject to three strikes laws. sentencing enhancements. as significantly higher rate than white defendants. which on average added 10 years to their sentence. a significant surrender or seizing of liberty. and you said you are not familiar with that particular study. you just reaffirmed or the facts that they cite in the study showing the into racial bias is present in our system. and you know, in our discussion it came out that you know these issues of bias in our criminal justice system are manifested in many different aspects of the system. from police misconduct, unlawful use of force. to prosecutorial bias, sentencing disparities. these are wide and vast areas that have been shown to have such implicit racial bias
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evident in them. ar clearly this ye we have been grappling as a nation with a lot of these issues. and it is a part of our long-standing history. you cannot divorce the role of judges in our history over these some 200 years and how race has been a persistent part of the national narrative, grappling with deep issues of bigotry and bias overt as well as the biases that exist. of the that many unjust death of unarmed african-americans at the hand of law enforcement have brought this more into the public concern. and so i just want to ask you and maybe give you more of a chance to discuss, i understand you are not aware of specific studies i cited which is central to the u.s. sentencing commission that advises federal judges. so, i just want to give you an opportunity today to share what
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studies, articles, books, law review articles or commentary you have read regarding racial disparities present in our criminal justice system. judge barrett: well, senator, as you know, the sentencing guidelines do give judges guidance on imposing sentences. so i am familiar with the sentencing guidelines because when we review sentences, it is something we need to draw on and apply. in addition to the sentencing guidelines, the sentencing commission, as you say, does, a few studies and sometimes we get things from the federal judicial center that talk about it. i am certainly aware but i think it is an obvious point -- sen. booker: forgive me for interrupting. judge barrett: that's fine. sen. booker: joni ernst has been teaching about iowa. but i was actually asking specifically any books you can name that you have read on this subject or law review articles,
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anything you specifically read outside of the sentencing guidelines. judge barrett: senator booker, i would say that what i have learned about has mostly been in conversations with people. dame, as at many other universities, a topic of conversation in classrooms but it is not something i can say, done research on this and read. sen. booker: i respect you have answered the question. one of the greatest drivers of disparities has been the war on drugs which really is a war of black and brown people because of the outrageous disparities. there are no difference between blacks and whites for using drugs. our multiple time more likely to be arrested. while i was at stanford, lots of drug use, very little rest but in low income communities like the one i lived in, equal drug use but much more arrests. partnership on both sides of the eye was about the crack and
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powder cocaine disparities that imposed harsh in ballast penalties for cocaine knowledge of the powder cocaine. someone caught with the amount of crack cocaine the side of the candy bar -- the size of a candy bar would get the same sentence as someone caught with a briefcase full of roderick ok'd. this is -- full of powdered cocaine. when the sentencing commission wrote, you wrote a law review article, one of the legal academics, not law review article, blog post in a well-known legal academic that cited this decision, and you questioned whether that was a wise call. in ferris as i -- in fairness, you raise the it administrative hurdles and retroactively imposing sentences that would provide relief to
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20,000 americans who had their liberty taken away from them. but never in the blog article that you mentioned this was unjust. there was no deference to how serious this is for the 20,000 americans, 98% of them who are black and brown. you just question why are we doing this? could you tell me why? judge barrett: sure. senator booker, i think what you are referring to is a short blog post on the law blog and it wasn't an in-depth exploration of the crack cocaine disparity or anything like that. it was simply pointing out the administrative person because my husband was a federal prosecutor at the time, and that had been table talk at our house, the complexities of retroactively going back. it wasn't a policy statement and was not a statement -- i don't think it was more than a paragraph and simply identifying the administrative hurdles youuse, cleary, whenever
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provide retroactive reforms, there are administrative hurdles going forward. sen. booker: your law professor and assigned a lot of syllabus to a guy like me. to a guy that played football. this is a long article. a couple of pages worth. i have it here. my old eyes cannot read without glasses judge barrett: my old eyes cannot see it from here. i do not have a memory of how long it was. sen. booker: you are not citing articles or research you read on this issue yet you have written here about it. to me that speaks, it makes me wonder and want to talk to a little bit about your preparedness and priorities taking the highest office in the judicial world that deals with such long-standing issues of race and, in a way, that affects the totality of the lives of americans in every aspect of their life, their financial well-being to their rights to vote. and i would like to go through as quickly as i can in my remaining 10 minutes a little
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bit about the vastness of this problem and why i'm very concerned you have not even cited anything that you have read that would speak to this, or the only writings i could find in it do not talk about the injustice of it all. so you had a conversation with senator klobuchar about voting. i just want to know, have you ever waited five hours to vote? judge barrett: i have not. sen. booker: have you ever waited over an hour? judge barrett: i have not. sen. booker: in wisconsin, state and your circuit we saw the travesty during the primary early this year, during a pandemic that many polling places were closed and lines ewewere incredibly long. in milwaukee, city of half a million people located in the county with 70% of that states black population, we literally saw out of the city's 180 polling places, only five were open. pushing people into hours and hours longs waits.
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comparably 66 polling places were open in madison, predominately white city half the size of milwaukee. the supreme court made this worse with a ruling that voting duringl in a pandemic where black americans are dying twice the rate avoid american spirit let's be clear. this is part of a nationwide problem with the racial disparities in voting. a recent study found that residents of entirely black neighborhoods wait almost 30% longer in lines to vote. and they were 74% more likely to spend more than half an hour at a polling place. siadyour descent, you something of -- said something about virtue-based restrictions that raised my concern and that virtue-based restrictions apply to civic rights like voting and jury service. not individual rights to possess a gun. this approach to the franchise sort of pulls up a lot of
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history where people used virtue-based restrictions in the past. it has been very well documented in our history. ideas that you can disenfranchise people if they do not meet certain virtue tests. and many of these test, i know you are aware of, are you worthy enough if you cannot say the whole declaration of independence? these are tests that john lewis used to talk about. can you count the bubbles and a bar of soap? you are familiar with that. judge barrett: senator, i want to be very clear. i tried to clear this up yesterday. this concept of virtue i think especially for people who are watching this who do not know about the law does not mean that i think that people's voting rights can be taken away because they are not good people or a think literacy ties are ok or anything like that. it is a concept that cantor v. barr was not about voting rights and i clearly said that voting is an individual and fundamental right that is critical. sen. booker: unconstitutional?
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judge barrett: voting isn't fundamental right that is critical to our democracy care at the point i was making is that the 14th him, does express that states rights to private fellows of voting rights because it is in the text. sen. booker: you are jumping to felonies. i asked about poll taxes. i tried to point out with a picture one place african-americans as a whole waiting so much longer than you and i might've ever waited in lines. i'm trying to "draw something" here for you. i asked about poll taxes. did not get to felony disenfranchise is. judge barrett: the point i was making in cantor versus barr. i was saying that was a concept in which i discussed it. subject to the voting rights act that prohibits procedures and practices. poll taxes. sen. booker: thank you. you are jumping ahead. i spent so much tom on my question. still have so much tom on my question. [laughter]
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let's jump ahead to this. sixagine where we had significant felony disenfranchisement, i write about the history going back to the post civil war period, the fall of reconstruction, thousands of blacks being lynched. massacre to -- the greenwood massacre. to try to make it harder for blacks to votes, designing disenfranchisement loss and toting -- easy disenfranchise african-americans. this is a lot of historical origins. now we have places like florida, and by the way there are levels of disenfranchisement for african-americans. in america one in every 17 blacks are unable to vote because of felony disenfranchisement. i can see by your expression it is surprising data point. i hope that you would look at that. 4,000 peoplebout 77
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have completed their sentences and are being prevented from voting because they still owe fines and fees. these are the americans, just purportedly black, subject to modern-day tax. if i am wealthy enough, i can pay that. if i'm african-american, disproportionately poor, i can i do that. one in five in florida could not vote because of felony disenfranchise. i have gone through some of the history. but as you are seeking this highest office in the land, i bring this full circle in our conversation because another a study by the american bar association, which i recommend to you shows that a person with a felony commitment in america is subject to 40,000 collateral consequences. in other words we now have an more marijuana-- has affected, and 2017 there is more possession of marijuana arrests in america than all of the -- arrest combined. disproportionately african-american people. and stanford and not
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notre dame, aside from football, but my point is, as you see that if a black person is not more likely to use marijuana but they are more likely to be convicted of a felony fort, some three to four times the rate, i hope you can see that that means that they are going to be more likely to lose other liberties, other rights that so deeply affects their lives. there voting life, their ability to raise their children when a parent has been put in a position where because of that felony conviction, doing things that two of the last three presidents admitted to doing they now cannot vote, cannot get jobs, they cannot get business licenses. this is such a deeply affecting system that is, is disproportionately harming one class of citizens based upon race. and so, here we are in the midst of, i returned to the not
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normalcy of this moment in american history. where, you can'turn on the tv and watch basketballt without courageous athletes trying to talk to the heart of america to say please listen, please listen. the system is endangering lives. taking away liberty, taking away your felony initial -- your financial well-being and taking you away from your children. there are people marching in all 50 states, 18 other countries because african-americans when t hey're jogging or sleeping in their home are being killed. and we have a nation now where we are doing a supreme court justice hearing. to a president that cannot even condemn white supremacy. white supremacist groups, stand by.
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where they are menacing and literally recruiting people to do some poll watching which many people have sounded the alarm. in african-american communities. dredging up memories of the past of people intimidating people at polling places. people protesting in our country, all leading into election where this issue and roe v. wade and people's health care, all's going to be on the bell and yet we are sitting here acting like this is normal. and i have a great deal of respect for my colleagues because, some of my colleagues had courageously have stepped up calling out studies from, and articles and writings from the heritage foundation, from the cato foundation, from aie ei who all spoke to the pervasiveness of racial disparities. the american, something is going on where the --
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times bestseller list, they amazon bestseller list had books the color of law. just mercy, the new jim crow. as people are seeking to know what the facts are. you understand my heart when i look at a justice who it seems that the fix is i n, is going to serve on the sn't takenurt and ha steps to understand the pervasiveness, the facts, the truth about cases of race that are going to come before you in a system right now that so many people feel like is unjust. the words written on the building of the supreme court, equal justice under law doesn't apply to them. because they see, as brian stevenson says, that we still live in a country where you get better treatment if you're rich and guilty than if you are poor and innocent. so, i appreciate the
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conversation that we have had. and i wish we had more time. fear as is a flood of talked to you about yesterday. there is a great deal of concern about the way this is being done. am deeply, deeply worried about the implications to our, the fabric of our nation as i said to you on a phone conversation with the way this is being handled. i'm very grateful with the decorum and candor in which you have answered my questions. i hope you feel like i've treated you in the same way. judge barrett: yes, thank you, senator. >> my staff was just telling me i should have said this. sen. graham: without objection. whatever it is. >> you in the justice are both trying to jump ahead. sen. graham: whatever it is. >> i appreciate you, mr. senator and the work that you and i have done. i would like to ask unanimous
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consent to enter into the record the following three letters into the record. a letter from the leadership conference on civil and human rights opposing justice barrett's nomination. a letter from 83 young people organization opposing the nomination of judge barrett. a letter from lgbtq ever see groups opposing any nomination where reasonable doubts exist on her ability to administer fair and impartial justice for the lgbtq people. thank you. sen. graham: without objection. >> thank you, mr. chairman. judge barrett, good to see you again. judge barrett: likewise. >> before i begin my comments and questions, i think there was at least an implication from what was just said that you would not be sensitive to their need for equal justice for all under the law. , for all peoples in america. would you like to respond to that at all before i go ahead? judge barrett: i am fully
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committed to equal justice under the law for all persons. i am fully committed to enforcing all laws to limit racial discrimination. in my private life, i bore racial discrimination and for both personal reasons and professional reasons want to ensure that there is equal justice for all. and all of my children i think have made an escape but if they washed this one day i would want all of them to know and especially -- and john peter, i condemn racism and want to do everything that i can in my own capacity personally and as a judge to end it. sen. crapo: thank you. i appreciate you making that point. afind it just incredible that mother of children of different races could be accused of not being sensitive, nor willing to protect the rights of all under
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the constitution. before i go on with my questions, once again, as happened both two days ago and yesterday and again today, there are couple things i need to be set straight in the record. first of all, once again today, it was said that we should not be holding these proceedings because we should be dealing with the pandemic. senateirst of all, the can do more than one thing at one time. secondly, as i indicated before, billionput over a $500 package overleaf dealing with most every important and significant aspect of our need for covid response on the floor. it has been filibustered by the other side. the president has made an even larger offer back, that has been flatly rejected. and we have had an announcement recently by the leader of the senate, mitch mcconnell, that we will vote again next week on the
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issue to see if there some way we can get an agreement to move forward. but the argument that we should simply ignore this important nomination because of that holds not water. secondly, another that them of the major point that this entire hearing was started out with on the first day was that people should be scared by these proceedings because they will lose coverage, health care coverage for pre-existing conditions. out timebeen again run and time again. i am not going to ask you to go through that again but i will make a couple comments about that. as i said earlier news hearings, even back when we were debating obamacare, there was no disagreement about covering pre-existing conditions. and in every proposal from our side since that time, coverage for pre-existing conditions has been included. it is not something that there is an effort to or are
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to eliminate in terms of protection and it is not at risk in the supreme court case. as you have, i think, very clearly described in your testimony, judge barrett. finally, with regard to that, if those assurances in those facts do not make it clear, senator tillis has introduced legislation called the protect act which will put into law once again protections for pre-existing conditions in our health care coverage and every one of my colleagues on the others of the aisle voted no to stop that from moving forward. it's there. the bill, the protect act, is in the senate. we can vote on it if we can just get permission to proceed to it from our colleagues. so, this notion that pre-existing conditions is somehow at jeopardy is simply rolling out yet again in this campaign cycle another one of the arguments that does not hold
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water. now, i do want to move to some questions for you, judge barrett. was again, after it extensively discussed yesterday and the day before, you have been attacked on the basis of concerns about your willingness to follow precedent and -- what of my colleagues and i heard wright said he thought that you may participate in issuing a judicial era of activism in overruling precedent of the courts and, basically, pushing an agenda that you won't admit to having. i know you have answered this a lot yesterday. we are going to go through it again. ytou w--e things that you were asked about was the 2013 law review article that you feel was not correctly reflective of what you said and
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how you feel. would you please, would you like to take an opportunity to clarify that for us? judge barrett: sure. that article was responding, i set a couple times the supreme court gives different presidential strength to constitutional cases and to statutory cases and that article was responding to arguments that beher started this should eliminated altogether or it should be absolute, and i was taking the supreme court doctrine as it exists where constitutional cases are not absolutely insulated from overruling, which is the position that every supreme court justice of whom i am aware has had. sometimes you do have to overrule cases. otherwise you do not have brown versus the board of education. i was just identifying some of the virtues of that position. i was defending in that article the current supreme court clearly , and i very said in that article that you
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cannot just impose a new vision with votes that you have to take reliant interests and that always lack of certainty about how the calculus runs counter to keeping the status quo. sen. crapo: thank you. i found it amazing that you would be accused of being a judicial activist, because you are textualist and an t,.ginalis as i understand your writings. i would like to look at a few of your writings. sou have described stari decisi as a fixture of the federal judicial system. you have stated that the supreme court, that you recognize the supreme court follows a presumption that precdeedent will stand. correct? judge barrett: and not only erroneous and unworkable that has to take into account reliance interest and other factors as well. sen. crapo: yes, that was
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actually next on my list. judge barrett: i'm sorry. sen. crapo: you anticipated that. and you have spent a lot of time and i will not ask you to do it again going to those requirements that are in place before a judge or a justice would seek to become an activist in the sense of overturning the existing precedent of the court. and you have also said that partisan politics are not a good reason for overturning precedent. i assume that goes without saying, correct? are some oft, those your writings and you have written much more. but let's look at some of the case law. you have got a pretty significant record now in the seventh circuit. a pretty as i see it, solid record there of following precedent. the first issue isn't -- is in 2019 you had a discussion
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with judge -- ok. and i think, could you explain that conversation? it related to a case where you were clarifying the even though you disagreed in a previous circumstance relating to it that you would follow precedent, or do you recall that conversation? judge barrett: i recall the conversation. we did it for a professor in the political science department primarily in undergrad audience. and we answered questions back and forth out of range of topics. i do not remember the particulars. sen. crapo: this was not a case. it was a scenario you were asked about annette conversation and you made the clarification that in that scenario -- and you made the clarification i-- it was a conversation and you made the clarification then in this scenario is consistent -- judge barrett: if i had dissented the first time around and lost? sen. crapo: that's apparently what that is all about. let's talk about a couple cases
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. in price versus the city of chicago you joined and affirming court'sover a district dismissal of a suit by pro like after his -- pro-life activists. what role did precedent play there? judge barrett: president -- prec edent control the case. price was nearly identical to the one that the court had upheld in hill. sen. crapo: even though in this case you ruled against a pro-life interest in following precedent, correct? judge barrett: correct. the cityo: in lett v. of chicago you apply the supreme court's test for evaluating restrictions on a public employee speech. do you recall that case? did you follow the precedent? v. barsky, the seventh arcuit held that
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petitioner's prior convictions no longer qualified as predicate offenses under certain criminal act. again, following precedent of the supreme court and the seventh circuit. i'm just picking out a few. you have got a very full record of these. in my view, i only found one case where you actually did not follow seventh circuit president. -- p[recedent. and that was the case of g v. the united states. why did you not follow the precedent then? judge barrett: in that case there was precedent that was all on point and the supreme court issued a series of subsequent decisions which called our prior precedent into doubt. so, the seventh circuit has a rule called circuit rule 40e and when we conclude as a full-court
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you circulated opinion to the full court to say i think our president should be overruled because it had fallen out of step with later developments in the supreme court. i circulated that precedent, the opinion pursuant to 40e, and the full court agreed and we overruled precedent. sen. crapo: the way i would summarize that is the court, with your support, overruled the seventh circuit precedent because of supreme court precedent overruled that. judge barrett: not directly. sen. crapo: so you were following supreme court prece dent to take that action? judge barrett: yes. sen. crapo: let's look at your cases and i'm going to go through some statistics. statistics sometimes get outdated so if these are not accurate please tell me. e before me tells me that you have authored 79 majority opinion since the
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writing of the seventh circuit? judge barrett: i don't know. so, i will take your word for it. sen. crapo: that's what my information size. and it says that you participate in the disposition of 922 appeals. does that sound approximately accurate? judge barrett: i think i have, the numbers that i have looked at recently suggested that i have participated in 600 panels that were appellants close to 1000 matters that would include things like stay, certificates of appeal, stay applications, etc. is, crapo: my understanding and these statistics might vary a little bit because the numbers are little different then you say, but i think this is pretty accurate, that your majority opinions have been unanimous, 95% of the time. in other words almost always when you join a majority it is unanimous conclusion of the corporate of the panel. is that correct? judge barrett: that is my understanding. sen. crapo: the statistics ics
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say that it is 95% of the time that it is unanimous for the decisions of the panel. congressionalrs, research service, in all the cases you heard resulting in a reported opinion, you only dissented 1.84% of the time. sixth among the 11 active judges of the seventh circuit which is right about in the middle. this report also says that your reported majority opinions drew dissent 6.41% of the time which grants you sixth among the 11 panelists, the 11 active judges, write about in the middle. the reportedhat majority change drew separate writing 7.69% of the time. among the 11u 8th active judges of the seventh circuit which means your opinions were some of the least
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likely to draw a dissent or a concurrence. that point of all these statistics is this is not the record of someone who is an activist in overturning precedent. this is the record of someone who follows precedent. and i just want to thank you for being that kind of a judge, because that is one of the reasons i am so glad to support your as we move forward. now, again, unfortunately, today, once again, and i thought we had this resolved yesterday, you've been challenged on what you knew about the president's on various issues and whether that influenced your positions. in fact, it was even implied that a law review article that you wrote that was probably written before the president was even president was something that you were influenced in writing because you knew what the president thought. in any event we are going to have to go back again and ask you these questions about, you have already said yesterday that the president did not talk to
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you, his staff did not talk to you, no one talked to about robe v. wade and california v texas. judge barrett: i made no commitments on any of those cases. sen. crapo: that was my next question. because today it has been implied that you basically just have been following the presidents statements, his tweets, even things he may have felt or believed before he was president. and trying to make your decisions consistent with that. once again, has the president or his team or anyone talk to you about any case, or received a commitment from you about how you would rule on any case? judge barrett: no, senator crapo. sen. crapo: all right. i hope that we can once again put that one to rest. and could you also, once again restate is anybody above the law in the united states? judge barrett: no one is above the law in the united states. sen. crapo: thank you very much.
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i told you yesterday i would ask if you saw -- softballs. judge barrett: how come softballs turn out not to be softballs? sen. crapo: these are some of my hard balls. i'm going to leave those because i only have three minutes left. i just want to talk to you for a minute about what academia. what led you to your decision to move out of practice into academia? judge barrett: well, when i was in law school i thought i might like to teach some day i really like teaching. i considered being a teacher. i mean, being a secondary school teacher was one of the things i thought about in college. as i said in my speech at the announcement of my nomination that my mom was a teacher and my dad was a lawyer. lawi wound up being a professor. so i loved the idea of teaching students. i like the idea of communicating
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with clarity. complicated doctrines to them to help them. i have very much enjoyed teaching the 2000 students i have taught and mentoring them as young adults disembarking on their careers and in many cases for those who've not havd much time betweenn undergrad and law school. it has been a really rewarding experience paid sen. crapo: you have obviously been very influential in that because so many of your students and your colleagues speak so highly of you. you actually also anticipated two of my other questions about it. i only have one more to ask and that is, what was your favorite class to teach? judge barrett: oh. it's hard to pick a favorite. it is like asking who is your favorite child. i really enjoyed teaching somata classes. federaltional law and courts overlap directly with the things i was writing about. i taught evidence mostly because
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i needed somebody to do it. what's funny about that, i didn't do scholarship i did not write scholarship about evidence. and i was doing it as service, service class because you need someone to take it. it turned out to be really fun to teach just because it was fun to be able to engage students and interactive exercises and i can use movie clips to do it and it turned out to be a very fun class to teach even though it did not overlap with the things i was writing about. sen. crapo: thank you very much, judge barrett, and it is an honor for me to be able to support you for this nomination. judge barrett: thank you, senator. sen. graham: senator harris, are you? can you hear me? thank mr. chairman care judge barrett earlier today you discussed the voting rights act as "a triumph of the civil rights movement," but as you know the voting rights act was not an ineffable triumph.
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it is important for us to acknowledge some of this history. this year our nation has more the loss of a great american hero, congressman john lewis. our country's greatest leaders because he inspired us to fight for a perfect union. every year john lewis would invite a bunch of us members of congress, faith leaders, others to join him in selma, alabama, for a walk across the bridge. and it was there that he would remind everyone of america's history and the history of the fact for generations black americans were denied their constitutional right to vote. he also reminded us of the brutality that some of the americans -- were fighting for the voting rights of black people and all people.
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that inory reminds us some states as a condition of voting, require black americans to answer impossible questions like take a look at that jar of jelly beans, if you're going to vote you need to tell us how many jelly beans are in the jar. there were questions asked of -- in order for them to vote they would have to tell the official how many bubbles iare in a bar of soap? some states required black people who had been systematically denied access to equal educational opportunities to answer questions like how often is the federal census taken, or when is inauguration day? and when one of these malicious questions was asked, they would -- as you could imagine and many were struck down. but, when that happened, those
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up new- would put restrictions. in other cases, black americans were beaten when they tried to vote or register to vote. others who memorably shed blood on the bridge. that is why after so much oppression and the marching, the people protests, from civil rights activist that in 1965 congress finally passed the voting rights act to end discriminatory voting practices. the voting rights act, as you know, requires states and a history,o had this is very important, who had a history of denying minorities the right to vote to get approval from the federal government before they change their voting laws. and for almost 50 years, the voting rights act gave what congress -- did what congress
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intended. at allowed the federal government to monitor and guard against racial discrimination in states with a long history of voter suppression. as we all know in 2013, and county inwalter, a alabama sue to strike down section five of the voting rights act that required alabama to seek approval from the federal government before estate can change its voting laws. and section five required that a number of states that had a documented history of voter suppression. manyjudge barrett, i know have my colleagues have asked you about this case but i think it is important we revisit it. gutted4 vote, the court the voting rights act and ended the requirement that states with a history of discrimination get federal approval before changing their voting laws. but the majority of the supreme court justices failed to understand is that the success in combating voter suppression directly was a function of our
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ability to enforce section five of the voting rights act. so, the success was due to the brilliance of section five of the voting rights act which gave us enforcement capabilities and monitoring capabilities. just two months after the court gutted the voting rights act, north carolina passed laws that made it so much more difficult for black americans to vote that a federal court of appeals mentioned that "it targeted african-americans with almost surgical precision." texas also has a long history of racial discrimination and voting and therefore was also covered by the voting rights act. but, after section five was gutted, texas quickly return to some of its discriminatory voting practices. than 1600 polling places closed after the
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decision, at least 750 were in texas. texas also restricted interpretation of the -- and this year, the governor of texas issued an order that for completedoxes mail-in ballots to just one per county. before the order, paris county, which includes houston, had 11 ballot drop box locations and a county of almost 4 million residents and a county that covers about 2000 square miles. many people will say that it's just common sense that going for -- from 11 drop boxes which is to reduce it to one single drop box, has made it more difficult for people to vote. the supreme court has long recognized that our right to vote is fundamental because it preserves and protects all of the -- in our democracy.
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any nominee for the supreme court must understand the effect of ongoing efforts to discriminate against black americans, latino americans, native americans, students, and other communities of color. since the supreme court decision in shelby at least 23 states have passed restricted voting laws and have attempted to also close polling places, stop early voting and take people's names off the voter rolls that should not have been removed. judge barrett come in shelby county, chief justice roberts wrote " voting discrimination still exists. no one does that. do you agree with justice roberts statement? judge barrett: senator harris, i want to just make sure that i understand, that my understandingd of what remains of the voting rights act what happened in shelby county is consistent with what you are describing. climate asarance of
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i understand shelby county remains in place and what the supreme court held on constitution is the coverage formula. so, some states, which in 1965 had discrimination had to get pre-clearance whenever they change anything to do with their voting procedures and other states didn't. and i think shelby county said that congress can still pass any cut -- a new coverage formula now. criteria forthe jurisdictions that are discriminating and requiring pre-clearance. harris: judge barrett, my question, however, is do you agree with chief justice roberts who said bony discrimination still exists, no one doubts that. judge barrett: senator harris, i will not count on when he justice had an opinion, whether an opinion is right or wrong or endorsed. that proposition. i'm asking, well,
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-- or a fact? do you not agree with the fact? judge barrett: senator, i am not going to make a comment. not going to say that i enjoy seeing the majority or the dissent in the case of shelby county. eyou saying that you refuse to dispute a known fact or you free refuse to agree with - you refuse to agree with a known fact? judge barrett: i am not exactly sure if you're asking me to endorse a factor any particular practice constitutes voter discovered asian? -- voter discrimination? we have seen evidence of discrimination this summer. sen. harris: this commendation exists in america in any form? judge barrett: senator harris, there have been kasich, we talked in the hearing about the wisconsin case that went up to the corporate involving voting.
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i think anything, any opinion mean to signal't that i disagreemen with the statement either. these are very charged issues pray they have been litigated in the courts. so i will not engage on that question. during ais: confirmation hearing 2005, chief justice roberts was asked about the constitutionality of section ii, which she referred to earlier as the voting rights act because -- "i have no basis for viewing section ii as constitutionally suspect and i don't." judge barrett, do you agree that section ii of the voting rights act is constitutional? judge barrett: i think that chief justice roberts'statement, i have no basis for viewing it as constitutionally suspect would be the same as mine. i am not aware of any constitutional law existing that would create a question about it. sen. harris: thank you. a senator hirono mentioned in
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2018 case before the supreme court or group of workers were denied overtime pay and did joint -- and joined together to crate a lawsuit. the corporation argue that workers did not have the right to go to court as a group. courtd like unlike the proceeding arbitration is process. the process -- and generally cannot be reviewed by a court. in many cases people are forced to agree to arbitration if they want to get a job. in 2018, because of a forced arbitration clause, the workers could not report to fight for overtime and instead were forced to fight for overtime pay behind closed doors in a private arbitration. justice ginsburg noted that the workers face a hobson's choice, except arbitration or under their employer's terms or give up their jobs.
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she went on to explain that " employees must have the capacity terms collectively -- in and conditions of employment." the court to consider the extreme imbalance of power in our nations workplaces and avoid further labor laws to protect workers and put them on equal footing. point?recognize her that there is an extreme imbalance of power between large corporations and individual workers? judge barrett: i'm going to give you the same answer i gave you with respect to the sentence that you quoted me from the chief justice roberts opinion on shelby county. i'm not going to engage in portionsg or embracing of opinions, especially opinions recently decided and contentious from the court. sen. harris: you have been on
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the bench a short time, but i'm going to point out that i do believe, and commentators have noted a pattern you have had of ruling against workers and in favor of corporations. transportation services you ruled against long-haul truckers seeking overtime pay for additional work. you ruled against delivery drivers seeking overtime pay, forcing them into private arbitration. worldwide, youc ruled against them -- employees who had been assigned less desirable roots compared to colleagues. and you ruled against a lack worker called a racial slur by his supervisor. according to an independent analysis of your decisions, judge, it appears you have sided with business interests over
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workers and consumer interests in about 85% of your cases. , existential threats are all around us. in california we have had five of the six largest wildfires in state history. sinceple have been killed august alone, including two firefighters and a helicopter pilot. across the state over 9000 homes and structures have been burned and california's -- californians have been forced to breathe dangerous smoke during a pandemic that attacks the respiratory system. rather than work to combat climate change, the trump administration has rolled back environmental protections and removed the term climate change from government agency websites, including the epa. in 2000 seven, in massachusetts versus epa, the supreme court
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decided on a 5-4 ruling that states could sue the epa for failure to combat climate change during the first bush administration. justice ginsburg was the crucial vote in that case. following the ruling, the epa responded by unequivocally finding that climate change and its impact was a danger to the public health and welfare. judge barrett, yesterday you said you had read things about climate change, but you would not say you had firm views on it. in response to senator blumenthal today you said you are not confident to opine on what causes global warming and don't think that that is relevant to the work you do as a judge. i certainly do believe that your views are relevant and i'm very concerned about your statement. caseassachusetts v epa shows that there is stronger
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evidence that climate change is real, is man-made, and causes a significant threat to human life. if it case comes before you and required you to consider scientific evidence, my question is would you did -- would you defer to scientists and those with expertise in the relevant issues before rendering a judgment question mark judge barrett: if it case comes before me involving environmental regulation i will certainly apply all applicable law when the log requires me to and as i'm sure you know, senator harris, the administrative seizure act requires courts to defer to agency fact-finding when supported by substantial evidence. so yes, i would apply that and defer when the law requires me to. do you accept that covid-19 is infectious? judge barrett: yes, i do accept
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that covid-19 is infectious. it's an obvious fact, yes. sen. harris: do you accept that smoking causes cancer? judge barrett: i'm not sure where you're going with this, but the notice that -- a question, it's yes or no, you can answer if you believe. judge barrett: yes, every package warns that causes cancer. sen. harris: do you believe that climate change is happening and threatening the air we breathe and the water that we drink? judge barrett: again, i wondered if -- where you were going with that. you asked me uncontroversial questions, like covid-19 being infectious or if smoking causes cancer and trying to solicit to -- an opinion from me on a very contentious matter of public debate and i will not do that, i will not express a view on a matter of public policy,
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especially one that is politically controversial because it is inconsistent with the judicial rule, as i explained. sen. harris: you made your point clear, you believe it is a debatable point. mr. speaker, i believe these proceedings lack legitimacy in the eyes of the people in this country. americans are suffering from a deadly pandemic and a historic economic crisis. the senate should be working day and night to provide economic relief to families and not rushing a supreme court confirmation. we are also in the middle of the election -- an election. 12 million americans have already voted. the american people want whomever wins the election to fill the seat. my republican colleagues know that, i believe. this hearing has done nothing to alleviate the concerns raised about why this nominee was chosen and why this is being rushed, when the american people deserve to be heard. again, i would say let us not
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pretend that we don't know what consequences rushing the confirmation have for the american people. to be candid, people are very scared. they are scared that allowing president trump to jam the confirmation through would roll back rights for generations, scared about what it means for their future voting rights, civil rights, workers rights, for climate change. and the light -- the right to a safe and legal abortion, not to mention access to health care regardless of income or pre-existing condition. they are also deeply concerned about what this means from a ofion's continued pursuit decline is to principles and i share those concerns. my senate republican colleagues are doing, i believe, great harm with this illegitimate process
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and if they are successful it has the potential to do great damage. and i believe that damage is to the people of our country and to the united states supreme court. thank you, mr. chairman. senator harris. senator kennedy? thank you, mr.: chairman. judge, let's try to answer some ' are you a racist? judge barrett: i am not a racist. sen. kennedy: you are sure? judge barrett: i'm positive. support iny: do you all cases corporations overworking people? sen. harris: i do not and i think if you look at my record,
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you will see cases in which i ofe decided in favor plaintiffs, not corporations. sen. kennedy: are you against brightwater, and environmental justice? judge barrett: i am not against any of those things. those are policies the congress has pursued in many statutes and i think we all reap the benefits of windows statutes work. do you support science? judge barrett: i do. and i help my children with their homework when they try to learn it. sen. kennedy: you are sure of that? judge barrett: i'm sure that i support science. sen. kennedy: do you support children and prosperity? judge barrett: i support children. seven of my own. and support others, obviously, children are our future, i support children and yes, i
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support prosperity. sen. kennedy: do you hate little warm puppies? judge barrett: i do not hate little warm sen. kennedy: puppies. i wanted to get that clear. we did that in two minutes. judge barrett: i think that my daughter, juliet, would want me to put in a plug that says i don't hate chinchillas. i don't hate chinchillas either. sen. kennedy: duly noted, senator harris is my friend and i get it, she's running for vice president. i want to address these voting rights allegations. senator harris has implied that some states are pristine and other states aren't in terms of discriminating. in terms of discriminating against people on the basis of gender, race, or ethnicity. we, we disagree.
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she thinks that america is systemically racist. i don't. i think that our entire history is the best evidence of that. i don't think we are a racist country. i think we are a country that has some racists in it. but, i'm very proud of the fact that our country has in 150 years, which in the grand scheme of life, death, and the resurrection, is the blink of an eye, going from institutionalized slavery to an african-american president. i will missed -- some of these dates, but we passed civil rights laws and i 57.k 1869, 1871, 19 1961. 1965. 1990, 1991.
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i'm pretty proud of that. but let me get back to my point. my good friend senator harris, and she is my friend, i have anna norma's amount of respect enormous amount of respect for kamala, she suspect -- she suggested some states are wicked and others are pristine. i'd would -- i would gently remind her that california, state that i love, i love visiting california, you have got to keep moving, they will tax you if you stand still, but i love california. deepalifornia has a, has a history of discrimination against asian americans. california has a deep history of discrimination against hispanics. true,m not saying this is
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but there have been serious allegations made against senator harris that as attorney general of the wonderful state of california, that she participated in racial disparities in prosecutions. again.jump subjects we've talked about precedent, tareed to sizes -- s decicus, we need to be able to have statement -- have stability, rely on the law. but you are not suggesting that the united states supreme court never has nor should it ever reverse present -- reverse precedent if they think they got it wrong, have you? judge barrett: no, the supreme
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court has acknowledged circumstances where they must be able to reverse precedent. 1 you mentioned -- sen. kennedy: you mentioned reliance factor ins, this as a deciding whether to overturn the precedent. judge barrett: yes. sen. kennedy: they are not dispositive, are they? judge barrett: reliance interests are not dispositive. in brown versus the board of education, i mean clearly the south had an entire system of segregated schooling that they plessyied on, relying on versus ferguson, but reliance interest were not dispositive. sen. kennedy: there were a lot of reliance interests on plessy v ferguson, were in there? judge barrett: brown illustrates that they are not dispositive. you have to look at all of the factors of the stare decisis decide --stare decisis test. sen. kennedy: ok.
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yesterday another friend, senator booker, rhodes scholars, helluva tight end, two, stamford, he asked you if you, i wrote it down, empathized with people struggling to pay for health care. you appropriately said yes. i mean, we all do. under the system of separation of powers and checks and balances, which branch of government is supposed to address the struggle that many americans have in affording health care? congress or the u.s. supreme court? judge barrett: congress, senator kennedy. let's talk just a second about state constitutions . i know you know this, but we forget sometimes that state constitutions proceeded federal constitutions. am i right?
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in fact, there are parts of our federal constitution that were copied from state constitution. having said that, there are a lot of, there are a lot of provisions for dissimilar. own states have their version of the fourth amendment. judge barrett: yes. what happens when a state supreme court construes its for them and meant differently than the united states supreme court construes the federal fourth amendment? judge barrett: the state is free to construe its fourth amendment differently as a matter of state law. but of course, the federal constitution also applies to the states through the supremacy clause. if they were to violate the fourth amendment. but one thing states often do, which i'm sure you know, with
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your interest in state constitutions, and we talked about the louisiana constitution yesterday, many states interpret their provisions to be even more protective of rights than even the united states constitution. sen. kennedy: so, the federal constitution sets a floor? sen. kennedy: but not -- judge barrett: but not a ceiling. sen. kennedy: so, if louisiana wants to construe its fourth as not having any exception to the warrant requirement, we can do that? judge barrett: states are free, they are free to fashion their policies as they want within the limits of the federal constitution. so, the contours of the federal fourth amendment would not themselves prohibit louisiana from doing that. sen. kennedy: why does that make sense to you? judge barrett: well, that's federalism. my friend has written a book
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solutions,"mperfect the point being that it is federalism, different states with different preferences. the electorates can make different decisions in louisiana, indiana, and california. if some states want greater protection, and many do, we allow those differences to ofurish within the limits the common denominator that we have in the united states constitution. sen. kennedy: and that's just respect for the states? judge barrett: that is. sen. kennedy: the federal constitution has a state action requirement, am i right? judge barrett: it does. sen. kennedy: would the state be free to not have a state action requirement? i am not aware of any principal that would prevent a state through statute or constitutional provision that
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states can be a master of their own constitutions. sen. kennedy: what do i mean when talking about state action requirements? only one itt: the can think of is the 13th amendment, which prohibits slavery. the 14th, the context in which the state action requirement has been explored in the state law in civil rights cases means that the people protection guarantee, or even all of the bill of rights incorporated through it like the first amendment, only apply to the government. so, when i'm teaching this to my common law students, i tell them that i can teach my kids at the dinner table that the first amendment doesn't apply here. i say that in my house, it is the law of amy. public universities are different than private universities in that regard. sen. kennedy: i don't know what
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the law is right now, but i think there was a case, maybe it has been overruled, before the california supreme court based on its constitutional history where they have ruled that the first amendment in the california constitution has no state action requirement. it doesn't just protect you against government, it protects you against everybody. judge barrett: i didn't know that. sen. kennedy: some interesting litigation. somewhere that you are an admirer of kate chopin? judge barrett: oh, yeah. sen. kennedy: tell us who she was and why you admire her. judge barrett: when i was in college, back in my english major days -- sen. kennedy: louisiana writer, right? judge barrett: that's right, she wrote a book focused on
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louisiana and a woman who comes to louisiana from -- i can't remember what part of the south she was from and talked about coming accustomed to new orleans and its particular culture and i very much appreciated that. because it, you know, especially as a new -- a person from new orleans, i thought it was an insightful look into what the history of it was like and my family, my great, great parents came to new orleans from france. my family has been there for generations. it's history is important to me. chopin had a miss very feminist point of view, did she not? before her time, yeah? judge barrett: she did, she did.
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[slow clapping] sen. kennedy: two more. tell me the legal authority, if you know, for a universal injunction. we have 600 that district for judges. i could be off by a few. have, they have not only limited jurisdiction, but limited venue, if you will. should --cases it cases in a certain geographical area. how can one federal district venuejudge in a limited enjoying a congressional statute or a presidential executive order for the entire united states, continental and otherwise? judge barrett: that is a disputed issue of law.
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the authority of district courts issued a nationwide injunction. that would take me down opining the case that could wind up in litigation in front of me. [solitary clapping] judge barrett: i got one last question. sen. kennedy: hope it is an easy one. -- sen. kennedy: i got one last question. judge barrett: hope it is an easy one. sen. kennedy: who does the laundry in your house? judge barrett: increasingly we try to get the children to take responsibility, but it has not been successful. we run a lot of loads of laundry. sen. kennedy: well, you are very impressive, judge. i yield back. >> senator blackburn? senator blackburn: thank you, mr. chairman. thank you for your endurance today. we appreciate it. i have a couple of things for
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the record. a letter in support of judge merrick from the republican national lawyers association. and then also the op-ed that was post," washington september 25. "amy, barrett, here's what people get wrong about her faith. president of the catholic -- amyity of america coney barrett, here's what people get wrong without -- -- online -- faith." >> thank you. i will introduce those two. >> mr. chairman? >> yes, sir. >> letters in opposition to the nominees -- nomination from 50
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organizations to support the rights of working families, 320 law professors specializing in health law and constitutional law, the alliance for justice lawyers for good government. >> without objection. just a couple of things, tying up some loose ends before we let you get on your way. senator harris mentioned, as did others, that they would like to see us working on covid relief again. i want to remind my colleagues that they had the opportunity to vote on this a couple of weeks back. and if senator harris chooses to come in next week, she will have the opportunity to vote on covid relief once again. she mentioned the california fires. her comments to you about climate change. i would just remind my friends
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-- my friend, senator harris, that it is pointed out regularly that these fires occur every year. some years are more difficult than others. and we, we just grieve the loss of property. and life and livelihood for kyla forney and. -- californians. we also know that california state officials have not been successful in getting their forest management plans under control. things.ould note those is nobarrett, i think it secret that the democrats are trying to drum up a lot of hysteria about you. to spread some fear and misinformation. much of this is centered on american health care. here's the reality, our friends across the dais here are wanting to do a single payer government
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run system. constitutionala court would drop -- would block them from taking control of health care, from taking private health insurance away from 153 million americans. and they have centered this entire attack talking about the aca, or obamacare. there areyesterday, 8.3 million americans in the obamacare program. and in addition to the 153 million that have private health insurance, there are 57 million senior americans that have been paying into medicare all their working lives. they would lose that with a government run single-payer system. i feel like our friends across
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the dais have really tried to paint you as a monster with an agenda. i have appreciated that you have said repeatedly "i have no agenda." we know, as i said, they have their goals. they have their goals on health care, socialized medicine, ending the doctor-patient alationship, making it bureaucrat patient relationship. they've even said pre-existing condition coverage would go away , which isn't true. widely supported by republicans and democrats and it originated with democrats in the senate and republicans in the house. they have also said that older children would lose their health care. not true. again, that has bipartisan support. but i think what has struck me the most through these comments
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is that they say you have to have diversity in order to have equality. but what i have watched them do through this entire process of questions, talking with you and opening statements, they have chosen intellectual isolation as asosed to having diversity opposed to a different -- to having diversity rather than a different perspective and that is very sad to me. i would say that the american people are no more afraid of the of ars are no more afraid catholic woman than they are scared of the words splattered on a protest poster being held by a woman. they don't fear that.
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i have also found a few things said about you to be unnecessarily condescending. i regret that. leftw that some on the think that they can verbally pound you into submission to a more leftist agenda. -- that one of the things that those of us on our side of the aisle continue to say, we don't want activist judges for the left or the right. my colleagues should be comforted in the fact that we don't want judicial activism, period, end of sentence. we want jurists who will call balls and strikes that are
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alistitutionalist, textur st, originalist. some of my colleagues at the other side of the dais seemed quite amazed that you could balance career and family. i would think that they would praise you for finding a way to do the work that you feel called all., and balancing it maybe they should be curious about how you meet the demand of family and work, and friends and differentd all of the balls. when my kids were small i felt like i was juggling balls coming and going and now that i have grandkids, i feel about the same way sometimes.
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they have been almost, tone ofately, have this condescension that there would be a woman from the political right who would try to have it all. as i tell my daughter regularly, you can have it all, just not at the same time. things have to get spaced out. you take these tests as they come. we see that what they have done theircontinue to protect thoughts, their desires, their concerns onto the american people. using words about militia, fear, terrified, scared. the american people are not
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afraid of you. offended condescending the way that they accused you of not understanding recusal rules. senator kennedy talked to you about a louisiana author. nashvilleabout a songwriter. in nashville, we say that everything begins and ends with a song. one of my old neighbors, eddie arnold, had a song that was a great song, a love song. the title is applicable here. the song was called, you don't know me.
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in one of our visits i asked him about the story behind the song which is many times more interesting than the lyric themselves. with thehat he shared songwriter who wrote it is that many times we miss the richness of a relationship because we don't stop and take the time to get to know someone. what my colleagues stop they made it all about the affordable care act, they made it about the issues that they wanted to talk about because we are 20 days away from an election. did,e projection that they
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projecting their thoughts onto the american people, they projected stereotypes onto you. what theyeotypes are think about us as women on the political right. they enjoy being able to mock and ridicule and to diminish and to demean. .o them it is political sport it is the politics of personal destruction, and it is wrong. i think one of the things that them is this, you don't fit into their elitist format.
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south, a girl from the from new orleans. went to school at rhodes in memphis. i don't know if my colleagues have ever been to memphis or to rhodes, which is a wonderful fit intout you don't their harvard, ivy league group. or are not part of the click the club. rhodes, and you go to notre dame and people say exceptional, she is doing great work, we are going to help her to get to a different spot in her career. doors,y did, they opened you came to d.c..
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but judge, you messed up. you went back to notre dame. you chose to teach and to have a have friends in the sense of community, right there in the middle of the heartland's. now, they don't want to admit that you got where you got, that you earned it. shortcut.e you a you earned it. that is why we are so honored to support you. thank you. would like to associate myself with those
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comments, sen. blackburn. grew up in a small town called central, south carolina. the first and my family to go to college and my dad owned a bar, a pool room, and a liquor store. this is why i think i am a good senator. good training for this job. aboutmber, speaking country music -- do you know what a piccolo is? it is something that you put money into to listen to a song. the one song i remember to my with day, my wife ran off my best friend and i miss him. [laughter] it's a wonderful country. i want to say to my democratic
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colleagues, i have lost sleep over this hearing. i did not know how it would go. there is a lot of tension and 2020 is the year that is unbelievable in every fashion. you have asked challenging questions and probing questions and into -- at times you have done some of the things that senator blackburn talked about, but thank you for allowing us to get through this hearing in a fashion that is befitting of the senate. to my republican colleagues, thank you for being patient. this is not about us. this is about you. the hope was not to change anybody's mind. i'm hoping that people who did not know you, know you better. hoping that young women see hope
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in you. i hope that people who have listened find your disposition reassuring. you are one of the most amazing human beings i have ever met and that is saying a lot because i have got to meet a lot of incredible people as a senator or otherwise. knowledge of law is not unbelievable -- is just unbelievable, deep and wide. you are exactly who look in would be looking at -- exactly who a republican would look to pick. not so much a democrat. that is not a slam on you because elections have consequences. spend $.15 for me to figure out you are qualified. this is the first time i have had a chance to interact with you and all that i can say is i
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have seen a lot of people come and go, we have had some of the most talented people in this country sit where you are reportednd you have yourself well. your children have much to be proud of in their mother and your husband has much to be proud of in his wife. proud of inh to be terms of how you served your country thus far, and with amy barrett, the best is yet to come. at another time, in another place, you'd get everybody's vote. it's not about you, it is about us. somehow we have lost our way. there is no use blaming one side versus the other. it seems to be that our people get treated harshly. kagand for soto meyer and because i saw in them the qualities that a democratic president would be looking for
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and the temperament that the public would appreciate. this vacancy came about to the tragic demise of one of the greatest women of any time. she did things that no other woman was able to do and through her actions she paved the way for women to achieve their goals. she has a different philosophy than you do judicially. that is ok. that you can be pro life, can adhere to your faith, i would still be considered by your fellow citizens as worthy of this job. testnk you have passed any that any reasonable person could impose.
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test in termsry of disposition and character. you will be confirmed, god willing, and you have my full support. i see in you someone who is not only highly qualified in every way, but somebody who has broken new ground for the country. now is will be doing going to a closed session. the fbi evaluation will be presented to the committee. here.l meet again every nominee going back to chairman biden, and it is over. the hearing part is over. you can have two glasses of wine
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tonight. >> mr. chairman? sen. graham: i will defer to senator durbin if he would like to go first. sen. graham: i would just like to finish my thought. you have acquitted yourself well but the journey that you have to take will be challenging, it will be rewarding, and may god bless you in this endeavor. >> mr. chairman, on behalf of the democratic side, thank you for your fairness in this hearing. objection nor will i about the way you have conducted this, giving everyone a chance to express themselves, flexible on the time, and i thank you for that. it is a hallmark of what you brought to this committee and i hope that it continues through the remainder of this negotiation and deliberation.
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to judge merrick, thank you for being here. this is an ordeal. i want to thank your husband and your family for joining you in this effort. you will take away to saymories -- i want one thing that was mentioned yesterday. it always strikes me. the impact of this experience on your children. i heard you or someone say that there were painful moments for some of the kids. cause,we were not the but i will say that they are innocent victims and should not have to go through this. life cans in public tell you back a story or two of our own family experiences.
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we put our names on the ballot and when they go after the family, it infuriates me, but it happens, and sadly it happens to all of us. barrett: thank you for your kindness. sen. blumenthal: i went to join thankingurbin for beinin you for being here. at the beginning of the session tomorrow, we will be permitted opening statements. rather than taking time now, i'll will have comments on the process, and comments that have byn made by others, president trump some of our colleagues here today, but i do chairman, in.
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giving us that opportunity first thing tomorrow before the markup begins. sen. graham: we will meet tomorrow at 9:00 and will have an executive business meeting. we will talk among ourselves tomorrow and give everybody a chance to express themselves. and we will hear from the aba and we will meet tomorrow at 9:00. gavel this part of the process to conclusion. stop -- godyou bless you. thank you, mr. chairman. i plan on it.
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[laughter] [indistinct conversations]
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sen. graham: my bad. all good? >> looking at fundraising numbers today. how much did you -- [inaudible] i think people in south carolina are excited about judge merrick. if you want to help me close the gap, my opponent raised $57 million. congratulations to him, that is the most anybody has raised in the history of the senate. i raised 28 million dollars, the most any republican has ever raised. the contest in south carolina has taken on a national profile.


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