tv Supreme Court Nominee Amy Coney Barrett Confirmation Hearing - Day 3 CSPAN October 14, 2020 7:23pm-7:45pm EDT
international law to your decision-making process. is it ever appropriate to cite international law when interpreting the u.s. constitution? judge barrett: i would never want to say never because he is certainly possible. generally speaking, so it has issues with-- the which foreign law has been applied, and there is a debate about it, is when the court is trying for the lower court is trying to identify what is the nature of a right that is part of the tradition of the people, or that the people, what would people do? in my view of the united states constitution, it is the fundamental law of the american people. i don't think it would be controlled by the laws by other countries because it requests the fundamental commitment that we as an american peopsupport judge barrett's nomination. >> without objection.
barrett, on the seventh circuit, you are subject to a code of ethics. judge barrett: i am. >> i assume you're ok with that. judge barrett: of course. >> i would submit you think that is a good thing. judge barrett: yes. thell courts are subject to same code of ethics correct? judge barrett: yes. >> gets different at the supreme court. the supreme court is not subject to a code of ethics? judge barrett: the canons of judicial conduct that apply to lower court judges do not apply to the supreme court although i do believe it is the practice of the supreme court to follow them. >> they do not apply, we agree. going to the supreme court can interrupt an ethics investigation as we saw with justice kavanaugh who had an
ongoing ethics investigation in his circuit that was interrupted by his elevation to the supreme court without having concluded. there is no such thing with you correct? we have no seventh circuit ethics investigation going on that would bl it -- interrupted by your elevation to the supreme court? judge barrett: i am not aware. >> i suspect you would be. ofh respect to reporting ,ifts, travel, hospitality emoluments. the circuits have a solid rule about reporting those and you comply with that rule on the seventh circuit? judge barrett: i do. it might even be by statute that we have to do that, but i do. >> yes. , i will offer this as a proposition, the rule that you
follow and the way in which circuit judges follow it aligns quite well with the reporting requirements that in the executive branch, members of the cabinet have to do when they get travel, andifts, other emoluments and it aligns quite well with the reporting that members of congress have to gifts of travel or hospitality or other such emoluments. is with thency here supreme court. a much lower standard of transparency and disclosure about those very same things. it is a bit of a mystery when i see the situation, when you go up to the court, you will be not subject to the code of ethics that you are subject to now and you will have lower reporting
requirements than you do now or that any of us do. i flag that for you because i think it is anomalous that the highest court should have the lowest standards and i don't know if you want to say something about that? at a minimum, i hope you would keep an open mind about trying to fix that when you are on the court. if you have a defense of why the highest court should have a lowest standard, have at it. judge barrett: i know that the justices file financial disclosure reports. i have never looked at one. i didn't know that they were different or that it was a lower standard than the ones that the rest of us -- >> take a look at that when you get up there. >> i have never interrupted anyone, but can i ask a question ? now that you know that, how do you feel about it? interrupt my time while you are asking the desk answering the chairman's question?
judge barrett: as i just said, i am surprised because i did think it was by a statute that apply to everyone. i am surprised. i have always complied with filling out my financial disclosure reports and as i am sure it may have been for you all, it's a little uncomfortable the first time to make your finances available. anyone can request it. but i have always complied. a for the record, it is question of interpretation and practice. i have hadham and public conversations about trying to remedy this with a legislative fix. you have that coming your way. you have repeatedly mentioned the phrase about litigation winding its way through the courts and ultimately to the
supreme court. you have described that process as winding its way as an important restraint on judicial activism. you have to wait until a court -- a case gets to you through the ordinary course? judge barrett: correct. ordinarily, i don't know if you have ever done a case, but ordinarily it begins with a person. judge barrett: correct. >> that person feels an injury? judge barrett: yes. >> that person goes to a lawyer? judge barrett: yes. that person goes to a lawyer and files a complaint. win andurt, they try to vindicate their injury. that is the basic standard way in which this works. judge barrett: yes.
>> it gets a little weird sometimes and that is a circumstance i would like to bring up to you. it touches on some of the stuff that i addressed yesterday. you note janice? let's describe this as the janice saga. it's about a different case called abboud. that was precedent for 40 years. judge barrett: i can't remember when it was decided, but it was precedent before janice. it was a long-standing precedent. >> on which there was considerable reliance? judge barrett: it did overrule that precedent so it didn't go through the application of the -- factors in deciding whether or not to overrule it. >> there was reliance in the 40
years that it had been the law of the land on the question of the union that had resolved. judge barrett: i don't want to second-guess or criticize or praise the majority in >> >> -- i am asking you for a matter of fact, have 20 states relied on it? judge barrett: reliance on abboud is a legal question. >> we believe that than. the janice saga begins with a case called knox. alito took aice shot at abboud. ascriticized it substantially impinging on first member writes of union members. for people who are watching, the abboud case was about the labor from getting compensated
nonmembers when in the representation of their members, they get benefits for the people who are not members. not the most exciting part of the law, but settled this question of when they could get compensated for nonmembers. justice alito did not like it. andook a shot at it in knox the majority's choice to reach an issue not presented by the parties briefed or argued disregards our rules. justice alito did not like something about abood so he took a shot. then we went on to a later decision called harris b quinn. justice alito took another shot at abood in that case describing it as having an that is questionable. he undertook an extended critique of the decision describing it as having
questionable foundations. justice kagan spotted that and in her dissent, she said today's majority cannot resist taking pot shots at abood and described its critique as fortuitous -- -- gratuitous. the message went out from judge alito that he wanted to do something about abood. there was something about abood that he did not like. with that, that was the prequel. then, we went to the two cases that followed. friedrichsne was which was supposed to be the one that got rid of abood and it had an interesting travel. the lawyer in the case was one of these groups from janus. it was the center for individual rights. right to legal
defense foundation was counsel so they switched. forriedrichs, the center individual rights was counsel. , theyt went on to janus switched. for individual rights was an amicus. from everything i see, it looks like they went out and found a plaintiff. back to our earlier discussion, it wasn't the injured person that hired a lawyer, it was the legal group that went and found a plaintiff. then, they went to court which every buddy does. they got interest. i have never been in a case where anyone asked to lose have
you? judge barrett: no, i have never experienced that. >> i can imagine not. these groups with money behind them from bradley foundation and all come into court and they say please dismiss my case in the district court. then, they go to the ninth circuit and they specifically asked the ninth circuit to get rid of the case, to uphold the decision dismissing the case as quickly as practicable and without argument. have you ever seen a case where someone came in and said i would like to lose as quickly as practicable without making an argument on behalf of my client? wase barrett: abood controlling law at that point? >> my question was have you ever
seen that happen? judge barrett: i have not seen that happen in my circuit. >> then, the case went on to decision. as pretty did or signaled by justice alito, it looked like it was going to be 5-4 decision knocking out abood after 40 years. sadly and unfortunately, justice scalia died before that decision could be rendered so it decision -- turned out to be 4-4 decision. as you know, the tie ghost of the decision below and the ninth circuit prevailed. that was it for friedrichs. i did not take long for the same my janusis is back to exhibit. commonly -- who had showed up in janus. it was a reunion of the team.
getybody filing back in to -- there was no big rush this time because this time, they had to wait for the vacancy on the court to be filled. they had to wait for justice gorsuch. there was not the same rush. the case -- then they went to argue it and down came the decision. i asked you to think that through because i have done some appellate argument and i have done some trial work and i have run a lot of litigation. one of the things that has been a constant for me has been the belief that even if i was taking a long shot case, i would get a fair hearing, a fair decision, and i had a shot. that thefeeling lawyers going into united states caseme court in the janus
looking at this array of commonly funded antiunion front groups assembled against them having seen what friedrichs portended, having been signaled by justice alito in the earlier cases that they wanted to get rid of abood that they were on the hunt for. that is a feeling that no lawyer should have in america. court, iwere on the want to make sure you will conduct itself and cede that the court conducts itself that no lawyer goes into an argument the united states supreme court feeling that the case is stacked against them and there is nothing to be done rather than go in and take your medicine. judge barrett: i will approach every case with an open mind. >> i have a little bit of time , by the i will get onto
way i am not the only one who sees this as a saga. the dissent in janus said here and the six year campaign to undo abood by a majority of five. pretty safe to say that you don't think courts should be campaigning to reach decisions. judge barrett: without yes iing on janus, think that judges should not have campaigns. shouldprojects and they not have campaigns, they should decide cases. >> thank you. because we have had all of these -- fluttering around the court without disclosing who is behind them, let's talk about and mckey for a minute. the seventh, on circuit, do you have x partake meetings with litigants? te meetings with
litigants? constraints against doing so. >> how about with mckey? if there is a case where there is an amicus in a case before you, would you meet with them privately when the case is pending? privately,tt: meet allow the amicus? no. that would be inappropriate. >> is it possible that you would not know who is behind the amicus if they have not told you? how they are: funded?
i am thinking through what the disclosures are. that is not part of what groups disclose when they file emma chris reese. >> -- when they file amicus briefs. >> there is a decision that amicus in their disclosure only who paid for the physical preparation and filing of the brief. interest of aig group that said here's a million dollars we want you to do great things and we would appreciate it if you filed an amicus brief in this matter but don't mention us and we would love to give you would sayut what you and we would love to read it before you file it. that doesn't meet the standard of 37.6.
the court and the parties would never know and in fact, this happened in the oracle case in oracle versus google. hadurned out that oracle given up to $99,000 to something called internet accountability project which filed a brief and didn't disclose that oracle, a party in the case had given it $99,000 and internet accountability project was a pop-up. somebody established it, took the money and wrote the brief. there is another called the american conservative union which was given up to $500,000 by oracle and filed a brief in the oracle case and didn't disclose it had been given that kind of money by oracle. isn't that the kind of stuff that parties should know, that public and court should know? judge barrett: i did not know
that until you just shared it with me. >> inc. about it because i think it's something that the parties and the court and the public should know. groupse are amicus potentially teeing up the benefits that will benefit the secret funders that will may be two for a case to know is coming but it isn't this case but it can have an effect later on, other party should know that. andge you to consider that i am 13 seconds out, so i will leave it with that. please think about these things. there is something not right about the way this is happening and i urge you and anyone from the court who is listening to try to sincerely clean this mess
up because it [captions copyright national cable satellite corp. 2020] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] >> following day three of the confirmation hearing for amy coney barrett, lindsey graham spoke to reporters and echoed his closing statement by saying the nominee was well-qualified for the supreme court and had been forthcoming in her answers to committee members on her judicial philosophy. after senator graham, we will hear from senators durbin and blumenthal. >> [inaudible] >> i'm sorry, i keep doing it. my bad. there we go. >> [inaudible] sen. graham: