tv Sen. Graham CSPAN October 17, 2020 10:56am-11:19am EDT
for textualism, the judge approaches the text with the meeting it had at the time. by want to be careful to say that, if i am confirmed, you would not be getting justice scalia, you would be getting justice barrett. and that is because originalists do not always agree, and not do textualists. it is not a mechanical exercise. sen. graham: i will wait until the movie comes out. [laughter] the bottom line for me as there is a narrative building of this country, and again, you can stand down -- this is just me speaking for me. justice ginsburg was an iconic figure in american history, just not the law. she was a trailblazer. she fought for better conditions for women throughout society. progressivehamedly in her personal thought.
she was devout to her faith. she worked for the aclu. she was fairly pro-choice personally. but all of us on the side -- apparently when they voted -- accepted she was highly qualified. what i want the american people to know -- i think it is ok to be religiously conservative. i think it is ok to be personally pro-choice. i think it is ok to live your life in a traditional, catholic fashion. and you still be qualified for the supreme court. so all the young, conservative women out there, this hearing, to me, is about a place for you. i hope, when this is all over, there will be a place for you at the table. there will be a spot for you at the supreme court, like there was for judge ginsburg. and to president trump -- i don't know if you are listening or not -- by picking judge barrett, you have publicly said you find value in all of these characteristics. but, beyond anything else, you find judge barrett to be highly qualified.
i would say you are one of the greatest picks president trump could have made, and from the conservative side of the aisle, you are one of the most qualified people of your generation. let us talk about brown v. board of education, because i know senator blumenthal will. [laughter] i am going to talk about that. you said, in writing, it was a super precedent. what did you mean? judge barrett: welcome in my writings -- so as a professor i talked about the doctrine of stare decisis. super precedent does not come from the supreme court. i think, maybe in political conversation or in newspapers, people use it different ways. but in my writing, i was using a framework that has been articulated by other scholars. and in that context, super precedent means precedent that is so well-established that it would be unthinkable it would ever be overruled. and there are about six cases on this list other scholars have identified. sen. graham: let's talk about
around and talk about what it would be on think about. first, let's talk about the process that would lead to it being overruled. what would have to happen? judge barrett: for brown to be overruled, you would have to have congress, or some state or local government, impose segregation again -- sen. graham: ok, let's stop right there. if you want to make yourself famous, by the end of the day you can say we want to go back , to segregation. i promise you, you will be on every cable tv channel in america. i doubt if you will go very far, i doubt if you will go very far. the point we are china make here is the court can't wake up and say let's revisit brown. it has to be a case and controversy. is that right? judge barrett: yes, that's right. sen. graham: someone would have to pass a law that would say let's go back to segregated schools. i don't see that happening anytime soon. judge barrett: i don't see that
happening anytime soon. sen. graham: there's the heller case. what's that about. thee barrett: it held that second amendment protects the individual right to bear arms. some of my friends on the left have a problem with .eller if they pass a law that challenges the construct of heller -- judge barrett: lower courts have to follow supreme court precedent. sen. graham: if the supreme court wanted to revisit heller, what would they do? judge barrett: if someone challenged heller below, the supreme court would have to take that case, once it was appealed all the way. the court would have to decide, yes, we want to overrule heller.
sen. graham: that is the way the process works? judge barrett: it would start because there was a law, then there was an appeal, and the court decided the case. sen. graham: is that true no matter what the issue is -- gun, abortion, health care, campaign finances? yes, judgest: cannot wake up one day and say, i have an agenda, i like guns am i hate runs, i like abortion, i hate abortion and walk in lake a royal queen. for cases andit controversies to wind their way through the process. sasse gave: senator us a good civics lesson. if the court said i don't think you should have over six bullets and somebody believed that violated the second amendment, there will be a lawsuit and the same process would work? the same process
would work. in that case, parties would have state.the it would wind its way up and if it got to the supreme court and the supreme court decided to take it, a full decision-making process begins. you can talk to clerks, to your colleagues, you write an opinion and get feedback. it is an entire process. it's not something a judge or justice can say, we will hear .bout this case sen. graham: let's talk about abortion. what are the two leading cases? judge barrett: most people think of roe v. wade.
there was another with a slightly different rationale? sen. graham: what was the rationale? judge barrett: the court would not reduce -- produce an undue burden on a woman's right to have an abortion. sen. graham: i have a bill that would disallow abortion on demand at 20 weeks. because they feel pain. have is if you provide anesthesia, it must be a terrible death to be dismembered by an abortion. that is to protect the unborn at
the first month. would you listen to both sides? judge barrett: we would do this in every case. is a debate there in america still about the rights of the unborn. that is one example. challenge froma the state and it goes into court where people say this violate the case, how do you decide that? the parties would and it would be the same process. theone would have to seek spring court, the supreme court
would have to grant it and it would be the full process, braves, oral arguments, consultation with colleagues, riding in opinion, really digging down into it. it's not just the vote. you all do that. you have a policy and cast a vote. the judicial process is different. when it comes to your personal views about this topic -- do you own a gun? judge barrett: i do own a gun. sen. graham: do you think you could fairly decided case even though you on a gun? judge barrett: yes. sen. graham: your catholic. judge barrett: yes. sen. graham: we've established that. your faith means a lot to you? judge barrett: yes. sen. graham: can you set aside your catholic beliefs? judge barrett: i can.
i have done that in my time on the seventh circuit. sen. graham: i would dare say your personal views on the supreme court, nobody questions whether our liberal friends can set aside their believes. there's no reason to question yours in my view. so the bottom line is there is a blanks in filling the about guns and heller, abortion rights, was go to citizens united. to my good friend senator whitehouse. me and you are going to come closer and closer about regulating money. i can tell you there's a lot of money being raised in this campaign. i would like to know where the hell some of it is coming from. that's not your problem. citizens united says what? judge barrett: citizens united extends the protection of the first amendment to corporations in gated -- engage in political speech. to. graham: congress wanted
challenge that, what would you do? how would the process work? judge barrett: it would be the same process. someone would have to challenge the law, someone who wanted to spend the money in a political campaign, resume of late. judges -- presumably. judges would have to decide it. sen. graham: same-sex marriage. what is the case that established same-sex marriage as the law of the land? judge barrett: poker felt --obgerfell. sen. graham: would it follow the same process if there's a challenge? it would.ett: not only would someone have to , if they that statute outlawed same-sex marriage,
there would have to be a case. for the supreme court to take it off, you would have to have lower courts going along and say the case. flout if it made its way to the supreme court it would be the same process i described. sen. graham: let's turn to senator hawley's their topic. do process. can you explain it to the country because if you can't, we are in trouble. i think i will have a hard time doing it. provides that it the state cannot take life, liberty, or property without due process of law. that sounds like a procedural guarantee, but in the supreme president says it has a substantive component. there are some liberties that the states cannot take away without a really good reason.
so the right to use birth control, the right tone abortion are examples of rights protected by substantive due process. sen. graham: it is not found in the constitution? judge barrett: the supreme court has grounded them in the constitution. sen. graham: but they are not written. judge barrett: no. sen. graham: is it fair to say there's a great debate about how far the should go? judge barrett: there's also a lot of debate in supreme court opinions. i'm not aware of anyone deciding to throw it over entirely, but there is debate about how to define these rights and how far it should go. sen. graham: let's say you're in the camp or anybody is in the camp that substantive ross is is an illegal concept -- as a legal concept is unbounded, it makes the constitution no more certain that the five people interpreting it and any time. whatever rights you think you rightsou get, whatever
they want to take away from you, they can is a pretty nebulous legal concept. i'm not imposing my views on yours. but there's a thing called precedent. let's say you did not like a case decided under substantive due process. you got the concept was in error. how was that you got the concept was an error. ? how does that play? judge barrett: --judge barrett: precedent comes from a concept for a -- a shorthand longer latin phrase that means stand by the thing decided and do not disturb the calm. it is the principle you will not overrule something without good reason or more love the law without justification. sen. graham: you could say the that lead toalogy
any case, i reject that analysis, but i will now apply precedent to whether or not it should be reversed, is that what you're telling us? judge barrett: that is. sen. graham: what factors with the judge look at? the inquiries again because there has been some argument that the president was wrong, but that's not enough to justify an overruling. it. graham: constitutionally was wrongly decided, but that does not end the debate, is that correct? judge barrett: you have to look at the underlying -- sen. graham: reliance interest by who? judge barrett: reliant energy is by people who have relied on the precedent. sen. graham: the people of the united states. the people of the united states. sen. graham: abortion, the right to have an abortion, that would
be a reliant specter, right? we spend a lot of time describing the reliance of people on. sen. graham: you overrule a precedent of the court, there's a list of things you have to look at before you actually overrule the case. is that a fair way of saying it? judge barrett: a fair way of saying it. sen. graham: would you apply those factors if you wanted to consider overruling a precedent? judge barrett: absolutely. have precedence of the court been overruled before? judge barrett: yes. sen. graham: give me an example. judge barrett: brown versus board of education overrule plessy versus ferguson to get rid of the separate but equal doctrine. what is thet: president regarding the affordable care act, if any? what is them:
precedent regarding the portal care act, if any? judge barrett: there is not a precedent on the issue before the court. it turns on a doctrine called severability. sen. graham: the issue before the court was -- judge barrett: that was the first, about the constitutionality of the mandate. congressam: i think zero to out what the court called the tax and the real issue now is does it be severable? now that congress has zeroed it out, can it be called attacks or is it now a penalty? penalty, are there protections for pre-existing conditions. tell.raham: time will do you feel like you should recuse yourself because you're
being nominated by president trump? judge barrett: recusal itself is a legal issue. there is a statue that governs when judges and justices have to recuse. there is precedent under that rule. justice ginsburg and explaining the way that recusal works says it is up to the individual justice but it always involves consultation with the colleagues. that is not a question i can answer. sen. graham: if you are appointed by obama that the reason to recuse yourself? judge barrett: that would be a question for each justice to make. so, when it comes to recusing yourself, you will do what the supreme court requires of any justice.
judge barrett: i will. sen. graham: how does it feel to be nominated? judge barrett: senator i have tried to be on a media blackout for my mental health. i am aware of the caricatures floating around. what i would like to say in response to that question is -- look, i have made distinct choices. career ando pursue a have a large family. our faith is important to us. i have a multiracial family. tried in my personal life to impose my choices on others in the same is true professionally. i apply the law. i think i should say why i am sitting in the seat, why i have
agreed to be here. this is very difficult, and jesse and i had a very brief amount of time to make a decision. we knew that our lives would be combed over, we knew our faith would be caricatured, or family would be attacked. we had to decide whether those difficulties would be worth it. what sane person would do that if there was not a benefit on the other side? i am committed to the rule of law and i am not the only person but i wasdo this job, asked in it would be difficult for anyone, so why should i say someone else should have the difficulty. my family is all in. they share my beliefs and the rule of law.
sen. graham: thank you. i think a lot of people would say that you have to be insane to run for senate. we have all chosen crazy stuff to do. i'm glad to said yes. i'm glad president trump chose you. i'm glad you said yes. is it ok to be religiously conservative. it clearly is ok to be progressive and pro-choice and have a seat on the supreme court. i think resoundingly yes. here is why your nomination is important to me. in my world being a young conservative woman is have an easy path. we have two women on this committee you can talk about it better than i. i want to thank president trump for chewed --choosing you. i will do everything i can to make sure you have a seat at the bl