Transcripts For CSPAN Supreme Court Nominee Amy Coney Barrett Confirmation Hearing - Day 2 20240712

[cameras shuttering] [indistinct chatter] [gavel banging] good morning, everyone. Welcome back. Judge, thank you. A good day yesterday. Your family did great. You look good. Today is to door our first round of 30 minute questioning. Each senator will have 30 minutes to interact with judge merrick and then we will follow up with a second round of 20 minutes. Today, not get it done but we should get through the first 30 minutes and then come back wednesday and finish up and then we will go about our business. I will make sure i stay within 30 minutes and if i can shorten it, i will. Let us get to it. You can start the clock. You can relax a bit, judge, and take your mask off. Yesterday, we had a lot of discussion about Affordable Health care. What i am going to try to do briefly this morning is demonstrate the difference between politics and judging. All of my colleagues on the other side had very emotional obamacare, charts of people with preexisting conditions. I went to give you my side of the story. This is lindsey graham, senator from South Carolina talking. This is not a question directed at you. View, obamacare has been a disaster for the state of South Carolina. All of you over there who want to impose obamacare on South Carolina, we do not want it. We want something better. You know what we want . Care, why do we want that . Under the Affordable Care act three states get 35 of the money, folks. Can you name them . I will help you. California, new york, and massachusetts. They are 22 of the population. Senator feinstein is from california, nancy pelosi is from california, Chuck Schumer leader of the Democratic Senate is from new york, and massachusetts is elizabeth warren. Why did they get 35 of the money when they are only 22 of the population . That is the way they designed the law. The more you spend, the more you get. What does it mean for the people of South Carolina . Per patient formula where you got the same amount from the federal government to the state whether you lived in San Francisco or columbia or new york city, if you leveled that out, it would be almost 1 billion more for us in South Carolina. To my friends over there, we are going to fight back. We want our money. If you are going to have money allocated for obamacare, we are knocking to sit back and quietly let you give 35 not going to sit back and quietly let you give 35 to california. The Revenue Streams are uncertain. In increase in premiums South Carolina for those on obamacare. I was on obamacare for a few years. 300 , myms went up coverage was a most nonexistent. A 6,000 deductible. I want a better deal and that is a political fight. I am in a campaign at home. If it were up to me, we would block this money, send it back to the state in a more fair allocation, and we would require preexisting conditions to be covered as part of the block grant. We want sick people covered, but i have gotten idea. I think South Carolina may be able to deal with diabetes better than california. If you want good outcomes in medicine, you need innovation. The best way to get innovation is to allow people to try Different Things to get better outcomes. Is debate on health care consolidating all the power in washington, have some bureaucrat you will never meet running this program versus having it centered in the state where you live. Under my proposal South Carolina would get almost 1 billion more, the state would be in charge of administering obamacare, they could build football stadiums with the money. They would have to cover preexisting conditions. But as a patient in South Carolina, you would have a voice you do not have today. If you did not like what was happening to you, you could go to local officials and complain. The people you are complaining to live in your state. They send their family to the same hospital you go. That is the structural difference. That has got nothing to do with his hearing. It has everything to do with politics. Side, do not believe obamacare is the best way to provide Quality Health care overtime. Our friends on the other side, this is a placeholder. If you do not believe me, ask them. That is the fight going into 2020. Does it make them bad . Now, it just makes them different. Beeaucrats would not administering health care from washington. If it were up to me, we would get more money under obamacare. 35 would not go to three states and sick people would be covered. That is the political debate we are involved in. My fate will be left up to the people of South Carolina. That is what obamacare is about. How do you play into this, judge . There is a lawsuit involving the Affordable Care Supreme Court. We will talk about that in a bit. The difference between analyzing a lawsuit and having a political argument is fundamentally different and i hope to be able to demonstrate that over the course of the day. I hope my colleagues on the side of the aisle will not feel shy about telling my colleagues on the others of the aisle why we think we have a better idea on health care. The bottom line here, judge, you said yesterday that struck me and i want the American People to understand what you meant. Ou said you are an originalist yes. What does that mean in english . Lee, but insenator english. In english, that means i interpret the constitution as a law. The text is text and i understand it to have the meaning that it had at the time people ratified it so it does not change over time and it is not up to me to update it or infuse my own views into it. In other words, you are bound by the people who wrote it. That keeps you from substituting your judgment for theirs . Correct. Justice scalia is an originalist, correct . Yes. Some say you are a female scalia. What would you say . Justice scalia was a mentor and as i said when accepted the nomination his philosophy is mine. Defendervery eloquent ism and that was true of textualism which is how i approach statutes. Textualism, the judge approaches the text as it was written with the meaning at the time. But i want to be careful to say if i am confirmed, you would not be getting Justice Scalia. You would be getting just as barrett and that originalistst all agree. Callednd teaches a class scalia versus thomas. I will wait until the movie comes out. [laughter] the bottom line for me is there is a narrative building in this country and 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 called for better conditions for women throughout society, she was progressive and her personal thought, she was devout to her faith, she worked for the but, proudly prochoice, all of us on the side apparently when they voted accepted she was highly qualified. I want the American People to know i think it is ok to be religiously conservative. I think it is ok to be personally prochoice. I think it is ok to live your life in a traditional, catholic fashion and you can still be qualified. All of the young, conservative women out there, this 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. Trump, i dont know if you are listening or not, but by picking judge barrett you have said you find value in all of these characteristics. Beyond anything else you find judge barrett to be highly qualified. I think you are one of the greatest pix President Trump could have made picks President Trump could have made and one of the most qualified people of your generation. Let us talk about brown v. Board of education because senator blumenthal will. [laughter] writing it was a super precedent. What did you mean . 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 newspapers people use it different ways. In my writing, i was using a framework that has been articulated by other scholars and in that context, super precedent means one that is so wellestablished it would be unthinkable it would be overruled. There are about six cases on this list scholars have identified. Let us talk about brown and why would be unthinkable. First, let us talk about what is the process that would lead to it being overruled . What would have to happen . For brown to be overruled, you would have to have congress or some state or local government impose segregation again. Let us stop there. If you want to make yourself famous, 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, but the point youre trying to make is the court just cannot wake up and say, let us revisit brown. It has to be a case in controversy. That is right. Before a decision could be made somebody would have to be dumb enough to pass a law saying, let us go back to segregated schools is that fair to say . That is fair to say. Do you see that happening anytime soon . I do not seein see that happening anytime soon. I do not either. Let us talk about the heller case. That was decided by the Supreme Court which held the Second Amendment protects an individual right to bear arms. My friends on the left, some of them have a problem. They may try to challenge the construct of heller. If a state or local government passed a law, what would happen . In defiance . Challenging the construct of heller. That challenged the construct of heller, if it was brought in ower court, heller is lower courts always have to follow Supreme Court precedent. If the Supreme Court wanted to revisit heller, what would they do . If someone challenged heller below, because a state or local government passed a law contradicting it, the Supreme Court would have to take that case once it was appealed. The court would have to decide, yes, we want to overrule and we have enough votes and then do so. That is the way the process works. Yes. It would start because there is a law, then lawsuit, then appeal, the court decided the case. Is that true no matter what the issue is . Whether it is gone, abortion, health care, campaignfinance . Does that process hold true for everything . Yes, judges cannot just wake up one day and say, i have an agenda, i like guns, i hate abortion, and walking like a royal queen and impose their will on the world. You have to wait for cases and controversy which is the land which of the constitution to wind their way through the process. All right. I hope that is the basic lesson in law. If the state said, i do not think you should have over six bullets and somebody believed that violated the Second Amendment, there would be a lawsuit in the same process would work, right . The same process would work. In that case, parties would have to sue the state arguing that the law was unconstitutional. It would wind its way up and if it got to the Supreme Court, and if the Supreme Court decided to take it, a whole decisionmaking process begins. You hear arguments from litigants on both sides. They write briefs. You talk to clerks as a judge, your colleagues, and then you write an opinion. They circulate and you get feedback from your colleagues. It is an entire process. It is not something a judge or justice would wake up and say, i know what my vote is going to be. Let us talk about the two Supreme Court cases regarding abortion. One of them. People think of roe v. Wade thatasey is the case after upheld the central holdings, but grounded in different rationale. What is that rationale . State cannot impose undue burden on a woman choosing to terminate a pregnancy. There are challenges that are the fetal heartbeat bill. I have a bill that would disallow abortion on demand after 20 weeks. We are one of seven nations in the world that allow abortion on demand into the fifth month. The construct of my bill is because the child is capable of feeling pain in the fifth month, doctors tell us to save the life you have to providing esthesia. Anesthesia. The argument i make is if you have to provide anesthesia to save the life, it must be a terrible death to be dismembered by abortion. If that litigation comes before you, will you listen to both sides . Of course. I will do that in every case. 14 states have already passed a version of what i described. There really is a debate in america on brown v. Board of education about the right of the unborn. That is one example. So, if there is a challenge coming from a state, the state passes a law and it goes into court where people say, this violence casey. Hahow do you decide this . It would begin in a trial court. The trial court would make a record, parties would litigate that record, and then it would go to a court of appeals that would review that record looking for error, and again, it would be the same process. Have to seekd h the Supreme Court and then it would be the full judicial process. Argument,e oral consultation with colleagues, writing opinions, really digging down into it. It is not just a vote. You all have a policy and you cast a vote. To yourit comes personal views about this topic, do you own a gun . We do. Ok. Do you think you could fairly decide a case even though you own a gun . Yes. You are a catholic. I am. We have established that. The tenants of your faith mean a lot to you personally, correct . That is true. You have chosen to raise your family and the catholic faith . . Yes. Can you set aside believes regarding any issue before you . I can and i have done that in my time on the seventh circuit. I will continue to do that if im confirmed to the Supreme Court. I daresay your personal views on the spring court and nobody questions whether our liberal friends can set aside their beliefs. There is no reason to question yours in my view. The bottom line here is there is a process. You fill in the blanks whether this is about guns and heller, abortion rights, let us go to Citizens United. My good friend senator whitehouse, you and i are going to come closer and closer about regulating money because i do not know what is going on out there. [laughter] there is a lot of money being raised in this campaign. I would like to know where the hell some of it is coming from, but that is not your problem. Citizens united says what . Citizens united extends the protection of the First Amendment to corporations engaged in political speech. Congress wanted to revisit itt and somebody challenged under Citizens United that Congress Went too far. What would you do . How would the process work . Same process i have been describing. Somebody would have to challenge that law. Somebody who wanted to spend the money in a political campaign. It would wind its way up and judges would decide it after briefs and oral arguments in consultation with colleagues. Ok. Samesex marriage, what is the case that established samesex marriage . [indiscernible] if there was a state that outlawed samesex marriage, would follow the same process . It wooden one thing i have neglected to say before it would and one thing i neglected to say before his somebody would not only have to challenge there would have to be a case challenging it and for the Supreme Court to take it up, you would have to have lower courts going along and saying we are going to flout this. The most likely result would be lower courts, who are bound, would shut i lawsuit down and it would not make its way up to the Supreme Court. If it did, it would be the same process. Let us turn to senator hawleys favorite topic. Substantive due process, what my talking about . Can you explain it to the country because if you cannot, i think i am in trouble . M provideh and 15th the state cannot ta the due process clause says there are some liberties, some rights people possess that the state cannot take away or take away without a good reason. The right to use birth control, the right to an abortion are examples of rights protected by due process. These are created rights not found in the document called the constitution, is that correct . The Supreme Court has grounded them in the constitution. But they are not written. They are not expressed. Is it fair to say there is great debate on how far they should go and what limits should apply . That is fair to say. There is also a lot of debate in Supreme Court opinions im not aware of people throwing it over entirely but there is a debate on how to define the rights and how far it should go. Let us say you are in the substantive due process is unfounded. Whatever rights they think you have you get whatever rights they want to take away they can. That is a nebulous legal concept. I am not imposing my views on yours, but then there is precedent. Let us say you did not like a case decided under due process. You thought the concept was constitutionally in error. How does precedent play . The principles that cases have been decided by the court before this lands on the docket are presumptively control it. Precedent comes from a concept of stare decisis is which is shorthand for a longer land phrase that means standby the decided and do not disturb the column. You are not going to overrule something without justification for doing so. You could say the underlying analysis that led to any case, case x, i will now apply precedent to whether it should be reversed. Is that what youre telling us . That is. What factors would a judge look at in terms of overruling a precedent . The inquiry begins because there has been argument the precedent was wrong, but that is not enough to justify an overruling. Structurally, this case was wrongly decided, but that is not and the debate. You have to look at reliance interest, whether the law or facts let us stop quick. Reliance interest by whom . Those who have relied on the precedent. The people of United States. The people who have ordered affairs around it. The heller case people have relied upon, is that correct . Yes, presumably so. Abortion would be the right to have abortion. That would be a reliance, right . The court and casey spent a lot of time on the reliance of abortion. If you overrule a precedent of court, even if you think it is wrongly decided, there is a list of things you have to look at before you actually overrule the case. Is that a fair way of saying that . That is a fair way of saying it. Would you apply those factors if you found yourself in a position where you wanted to consider overruling a precedent . Absolutely. Have precedents and overruled before . Yes. Can you give me an example . Education. Board of got really separate but equal doctrine. My colleagues are asking you to recuse yourself from litigation around the Affordable Care act. What is the precedent regarding the Affordable Care act if any . The precedent is there precedent on the issue . Not coming before the court. Doctrineon a doctrina called severability. The issue before the court was sibilis, correct . That was the constitutionality of the mandate. Congress zero doubt what they called the tax and the real issue is canopy severable . Now that congress has euro did out canopy called a tax or is it a penalty . The second issue is if it is a penalty, can it be cut out from the statute so the rest of the statute, including preexisting conditions, stands . Smarter people than me suggest several ability would be a hard challenge for those opposing the law, but time will tell. Do you feel like you should recuse yourself from that case because you are being nominated by President Trump . Senator, recusal itself is a legal issue. Governs a statute that when judges and justices have to recuse. There is precedent under that rule. Justice ginsburg said it is up to the individual justice, but always involves consultation with colleagues. That is not a question i could answer right now. [indiscernible] that would be a decision for each justice. If a justice had a conflict with a policy issue, that would be a consideration is that correct . That would be a consideration. When it comes to recusing yourself you will do with the Supreme Court requires of every justice . I will. Thank you very much. How does it feel to be nominated for the Supreme Court of the United States . Triedl, senator, i have to be on a media blackout for the sake of my Mental Health, but you cannot keep yourself walled off from everything. I am aware of the caricatures floating around. I think what i would like to say in response to that question is that i have made distinct choices. I decided to pursue a career and have a large family. I have a multiracial family, our faith is important to us. All of those things are true, but they are my choices. In my personal interactions with people, i have a life brimming with people who have made different choices and i have never tried to impose my choices on them. The same is true professionally. Senator, i law and think say why im sitting in the seat. Why i have agreed to be here. I do not think it is any secret to any of you or the American People this is a difficult, some might say excruciating, process. Jesse and i had a brief amount of time to make a decision with momentous consequences for our family. We knew that our lives would be combed over for any negative detail, we knew our faith would be caricatured, our family would be attacked, and so we had to decide whether those difficulties would be worth it. Because what sane person would go through that if there was not a benefit on the other side . The benefit is that i am committed to the rule of law and the role of the Supreme Court and dispensing equal justice for all. Persont the only who could do this job, but i was asked. Why should i say seven l should do the difficulty if the difficulty is the only reason to say no. I should serve my country. My family share my beliefs. Thank you. I think a lot of people would say you have got to be sort of insane to run for the senate, the good news for you. We have all chosen crazy stuff to do. I am glad you said yes. I am glad President Trump shows you and before the people of the United States is a very basic question is it ok to be religiously conservative . Is it ok to be prolife . It is ok to be progressive and be prochoice and seek a seat on the Supreme Court. I think resoundingly yes. Here is why your nomination is so important to me. In my world, being a young, conservative women is not an easy path to take. Two women on this committee could talk about it better than i. I would like to thank President Trump for choosing you and i will do everything i can to make sure you have a seat at the table and that table is the Supreme Court. If anybody in the country, in my view, deserves to have a seat at the table based on the way they have lived their life and their capabilities in the law, it is you. Got bless you. Thank you, chairman. Senator feinstein. Judge, it isan, wonderful to see you also with the family i have been observing. They sit still, quiet, youve done a good job. I have eyes in the back of my head. [laughter] i am wondering if you might introduce us to them. Sure. Jesse, my son jp, my daughter emma, juliet, vivian, and my son liam. Behind them are my six siblings. Behind vivian is my sister michael, myen, sister megan, and my sister amanda. Carrie is sitting right over there. You do not have a magic formula for how you do it and handle all the children in your job and your work and your thought process, which is obviously excellent, do you . Improv. [laughter] yes. A question theth chairman touched on and it is of a great importance i think because it goes to a womans fundamental right to make the most personal decisions about their own body. As a College Student in the 1950s i saw what happened to young women who became pregnant at a time when abortion was not legal in this country. I went to stanford, i saw the trips to mexico, i saw young themselves andrt it was deeply, deeply concerning. During your confirmation hearing 1993e this committee in Ruth Bader Ginsburg was asked several questions about her views on whether the constitution protects a womans right to abortion. She unequivocally confirmed her view that the constitution protects a womans right to abortion. She explained it like this and i quote, the decision whether or not to bear a child is central to a womans life, to her wellbeing and dignity. It is a decision she must make for herself. When government controls that decision for her she is being treated as less than a fully adult human responsible for her own choice. At one point, our former colleague, orrin hatch, then Ranking Member of this committee, commended her for being very forthright in talking about that. You have been thus far equally forthright with your answers. Parenthood of southeastern pennsylvania v. Casey, Justice Scalia joined the dissent which took the position and i quote, we believe decided was wrongly and it should be overruled consistent with our traditional approach to stare decisis in constitutional cases. Do you agree that it was wrongly decided . Forthrightt to be and answer every question. Im going toion, invoke justice kagans description which i think is perfectly put. She said, she was not going to great president or give it a thumbs up or down grade accident or give it a thumbs up graded precedent or give it a thumbsup or thumbs down. It would be wrong of me to do that as a sitting judge. Whether i say i love it or i hate it, it signals that i might tilt one way or another in a pending case. Something that is a major cause with major effects on over half of the population of this , it is who are women distressing not to get a straight answer. Let me try again. Do you agree with Justice Scalias view that it was wrongly decided . Senator, i completely understand why you are asking the question, but again, i im goingommit or say in with an agenda because i am not. I have no agenda to try and overrule casey. I have an agenda to stick to the rule of law and decide cases as they come. Well, as a person i do not know if youll answer this either. Do you agree with Justice Scalias view that roe should be overturned by the Supreme Court . I think my answer is the same because that is a case that litigated, it is contoured, it could come up again and do,. They came out last term before the court. I think what the casey standard is that is a contentious issue. That is one reason it would be comforting to you to have an answer, but i cannot express tows on cases orprecommit approaching a particular way. It difficult for me and other women also on this committee because this is a very millions case effects of women. You could be a very important vote. I would hope you would say, as a person, you have got a lovely family and understand the implications of family life. You should be proud of that. I am proud of you for that. But my position is a little different. You are going on the biggest court of this land with a problem out there all women see, one way or another, in their life. Not all, but certainly married women do. Happens . Ion comes what will this justice support a law that has substantial precedent now . Would you commit yourself on whether you would or would not . What i will commit is that i will obey all the rules of stare decisis that if a question comes up before me about whether casey or any other case should be overruled, i will follow the law of stare decisis applying the law as the court is articulating it. Reliance, workability, being undermined by later facts and law, all the standard factors and i promised to do that for any issue that comes up, abortion or anything else. I will follow the law. I think that is expected i have gone as far as i can. Let me go to another issue. This country is facing great gun violence. In gunas been a surge purchases during the pandemic. According to the nonviolence archive, and independent gun violence archive there were 60 shootings in may alone. These killed 40 people, hurt 250 more. Also, there has been a troubling spike in gun sales. Approximately 2 million guns this march. It is the secondhighest month ever for gun sales. That figure does not take into account all the gun sales that could not be completed because the purchaser failed a background check. A number that has also skyrocketed. For example, this past march the fbis background check system sales. 23,692 the salesdouble blocked in march 2019. Do you agree federal, state, and local governments have a compelling interest in preventing a rise in gun violence, especially during a pandemic . Theenator, constitutionality of any particular measure that was passed by state or local government or by this body would be subject to the same judicial process i described to senator graham. Because this is descriptive of haller, heather leaves room for leavesulation heller room for gun regulation. Make the right absolute. Let me ask one more question. In a recent dissenting opinion that you wrote you said there that keepingons guns out of the hands of those who were likely to misuse them is a very strong governmental interest. Do you stand by that statement . Let us see. I cannot remember precisely the thes of cantor in which when i dissented. Canor v barr. Yes. I went through detailed history in that case does support the idea that governments are free to keep guns out of the hands of the dangerous. For example, the mentally ill, be likelywould to misuse guns. Where does that leave you . Asked, i thought, a very good question. For many people, and particularly for women, this is a fundamental question. We all have our moral values, our religions, we live that and i respect you and your family for doing just that. But this is a very real problem. If you could be more specific in any way with respect to how you would view your place on the court, with respect to controlling weapons in this country. What i can say is that my tor shows mycan judicial philosophy. I spent a lot of time looking at the history of the Second Amendment and Supreme Court cases. The way in which i would approach the review of gun regulation is in that same way. To look very carefully at the text, to look at what the original meaning was. I promise i would come to that with an open mind, applying the law as i can best determine it. Ok. Let me move on. One of my constituents, christina garcia, was able to obtain Insurance Coverage and had surgery that saved her eyesight only before the Affordable Care act. Her experience is not unique. Senator Tammy Baldwin has a constituent, jimmy anderson, in her home state of wisconsin and she asked the story be shared. Jimmy is a 34yearold and member of the wisconsin state legislature. In 2010, a drunk driver hit the family car as they were returning home from celebrating jimmys 24th birthday. Jimmys mother, father, and little brother were killed in the accident. Jimmy was paralyzed from the waist down. His medical recovery was intense. As jimmy has said, doctors managed to patch me up with dozens of stitches and multiple surgeries and about one pound of steel on my spine. Soon after his Insurance Company told him he was nearing his lifetime maximum. He would have to pay for the rest of his health care expenses. Withmy explains, hundreds of thousands of dollars still left to go i do not know what i was going to do. I was scared. I was just a student. I did not have that kind of money. Later,tely, a few days the Insurance Company sent him another letter. This one informed him that the provisions of the aca had kicked in which meant there were no longer lifetime maximums and his care would be covered. In his own words, i was able to put my life back together and i credit the Affordable Care act for that. Judge barrett, how should the loss of acas protections against Lifetime Coverage caps, caps that can be used to end coverage for lifesaving care, factor into a courts consideration of the validity of the aca . Know ther, so far as i case next week does not present that issue. It is not a challenge to preexisting, existing conditions coverage or the lifetime maximum relief amount cap. What is your view . Of how it should factor in . I think that any issue that would arise of the Affordable Care act or any other statute should be determined by the law, by looking at the text of the statute, by looking at precedent the same way it would for anyone. Differencese policy or policy consequences, those are for this body. For the court, it is adhering to the law and going where the law leads and leaving the policy decisions up to you. For me, my vote depends a lot on these responses. These are life or death questions for people. It is my understanding you were critical of Justice Roberts for upholding the aca. Stating that he, pushed the Affordable Care act beyond its plausible meaning to save the statute. Way did the chief justice go beyond the acas plausible meaning . This and written about that description is consistent with the way the chief justice described, it his own majority, king versus burwell where they had to decide whether established by a state included exchanges by the federal government. The majority in that case acknowledged that treating the exchangesincluding was not the most natural reading. Reasons,ther policy they chose to adopt the less natural reading. You see, for me, the case texas,up, california v. Puts a whole new light on your nomination. The Affordable Care act is now being so well accepted i represent the largest date as to senator harris. There are over 10 Million People dependent on the activities under this act. There is great concern about what your view is. That case is coming up. Can you give us your view . Senator, the issue in the case coming up does not involve it is not the same issue as the ones in king versus burwell. It is a different issue. Then give us both. Well, let us see. Quoted,aid, which you was that i thought the interpretation of the phrase established by a state was stretched when the court held that was established by the federal government. That is not the issue in california v. Texas. The issue is whether now that congress has completely zeroed out the mandate whether it is still attached to a penalty and even if so, is it constitutional . Even so is that fatal to the statute . There is a doctrine called severability which sounds unlikely, but is it ok to pluck that part out and let the rest of the statute stand . Or is that provision which has been zeroed out so critical to the statute that the whole statute falls . The issue in the case is the doctrine of severability and that is not something i have ever talked about with respect to the Affordable Care act. Honestly, i have not written about severability, that i know of, at all. You have no thoughts on the subject . It is a case that is on the court docket and the canons of judicial conduct would prohibit me from expressing a view. Ok. I will move on. Trumpy 30, 2020 president made claims of voter fraud and suggested he wanted to delay the upcoming election. Does the constitution give the president of United States the authority to unilaterally delay a general election under any circumstances . Senator, if that question ever came before me, i would need to hear arguments from the litigant and read briefs and consult with my law clerks and talk to my colleagues and go through the opinion writing process. If i give offthecuff answers, i would be a legal pundit and i do not think we want judges to be legal pundit. We want judges to approach with an open mind. Ok. Let me try something else. Eeoc17, in a case called v. Autozone the seventh circuit, your circuit, issued an opinion which permitted an employer to intentionally assign its employees to specific stores due to their race. The dissent in this opinion argued the decision permitted employers to legally establish separate, but equal, facilities and argued, if upheld, this decision would be contrary to the position the Supreme Court has taken in analogous equal protection cases as far back as brown v. Board of education. The case was appealed to the full panel. You sided with the majority to and let thering opinion stand. Is that correct . That is correct and i think i need to give a little context for what it means to vote to deny to rehear something. Our court, just like the supreme just, does not take cases because we think the panel got it wrong. Rule 35 of the appellate procedure constrained the limits and the times in which we take the resources of the full court to rehear a case. I was not on that panel and i did not express a view on the merits. Deny aike a vote not to vote on the merits. It was not an equal protection case. Question ask you a a person. Yes. If an employer can transfer an employee based solely on race, and that does not constitute a materially adverse employment action because it was purely lateral job transfer, please explain what factors must be present for a policy based on the to violate brown b board of education of separate, but equal. To my knowledge, brown was not at issue. It turned on statutory language in statute seven. Again, i did not express a view on the merits. I cannot, i whether i think the Panel Majority got that right i cannot comment on whether i think the Panel Majority got that right. I may be on a panel that decides whether that precedent was wrong. As a person do you have a general belief . As a person i have a general belief racism is abhorrent. It is what . Abhorrent. I think we would all agree with that. So, how should a lower court in the seventh determine when race based policies could constitute a materially adverse employment action . Casesl, i am not aware of presenting the exact same facts i am asking you for your view. I know that the material adverse consequence was the standard issue in that case. I have to confess i would need to look at the statute and precedent well, even if i had a specific hypothetical in front of me, i could not really say without looking at the statute and precedent what factors are involved. I was not on that panel and have not decided a similar case. Let me go to another issue. Of lgbtq equality is very personal for me. I have spent two decades as a county supervisor and mayor of a city. I watched firsthand as the Lgbtq Community fought for legal recognition of their lives, their relationships, their personal dignity. I was there before the law so i saw in San Francisco what was happening. I want to speak briefly about thecouple who i met in 1970s. They were vibrant members of San Franciscos community. I was president of the board of supervisors. They worked with me to pass a citywide ordinance in 1978 that provided critical protection against discrimination in employment housing public accommodations. At that time this was one of the strongest protections for the Gay Community in the entire nation. We have come a long way since then and i think we should never go back. 2008, 58 years after they met, my two friends were finally able to marry when the california Supreme Court ruled that samesex couples cannot be denied the fundamental right to marry. Del died two months later. Because of the federal defense of marriage act, doma, phyllis was denied Social Security Survivor Benefits even though her spouse had paid into this basic safety net for her entire working life. Phil had to rely on the help of friends and fellow activist. You would know, usb windsor thes v. Supreme court struck it down. Recognized that this rite could not be denied. Both decisions were decided by a 54 margin. Justice ginsburg was in the majority. Justice scalia dissented in both cases. You said in your acceptance speech for this nomination the Justice Scalias philosophy is your philosophy. Do you agree with this particular point of Justice Scalias view that the u. S. Constitution does not afford gay people the fundamental right to marry . Feinstein, as i said to senator graham at the outset if i were confirmed, you would be getting Justice Barrett, not Justice Scalia. I dont think anybody should assume just because Justice Scalia decided a certain way i would as well. Disagreet agree or just for the same reason i have been giving. Used this tourg describe how i now many should comport herself at a hearing. Previous, no forecast. That has been the practice before her, but everybody calls it the ginsburg rule because she stated it concisely and it has been the practice of every nominee since. I am sorry to not be able to embrace or disavow Justice Scalias position, but i cannot do that on any point of law. That is too bad because it is rather a fundamental point for large numbers of people in this country. I understand you do not want to ,nswer these questions directly but you identify yourself with a that you, like him, would be a consistent vote to rollback hardwon freedoms and protections for the Lgbtq Community. What i was hoping you would say is that this would be a point of difference where those freedoms would be respected. You have not said that. Agenda and i have no i want to be clear that i have never discriminated on the basis of sexual preference and would not ever discriminate on sexual preference. Like racism i think discrimination is abhorrent. However,estion of law, because i am a sitting judge and because you cannot answer questions without going through the judicial process, i cannot give answers to those very specific questions. Ok. Thank you very much. Chairman. Senator. You can rest for a minute because i have got some things to say to my colleagues, but more importantly people around the country so they understand what is going on. First of all, for your family and friends, im sure they are very proud, and they ought to be. I think everybody recognizes your sharp intellect, deep understanding of and even great reverence for the constitution. Your legal experience in Public Services and present. Your dedication to mentoring and women in the Legal Profession ought to be admired by everyone. In all respects, you are exceptionally qualified to be a justice. Many groups and individuals have written in strong support. I guess now that the chairman is gone, i am going to ask, as the next one ranking, i have letters from 21 state lieutenant governors and 20 secretaries of state that i want to put in the record at this point. Before i question, i have a few points to make the yesterday, my democratic colleagues spoke about their concern that you, judge, wouldnt uphold certain laws, including the Affordable Care act, and that you would americans of Health Care Rights and those protections that come with it. These opponents said that republicans just want to confirm will carryyou their policies forward, meaning republic policy forward republican policy forward on the Supreme Court, but this only shows democrats fundamentally misunderstand what judges are supposed to do. A judge is supposed to interpret laws in an impartial manner, consistent with the constitution. Republicans arent interested in seeing judges carry their policies forward. Republicans want judges to interpret the law, and the constitution, not make law. That wont impose their policies and personal preferences in their decisionmaking, plain and simple. Policymaking is not the proper role of the judicial branch. That role is reserved for legislative and executive branches. As the judge said, the political branches, elected by and accountable to the people, because you have a lifetime appointment, and if you do lawmaking, we cannot invoke you out of office. Lawmaking is our job. People do not like what we do, they can vote us out of office. Some other points on the Affordable Care act the democrats continue to misrepresent or claim to know b view on a fist to health care and they made it their entire game plan yesterday and i suppose today we will see it again. But we should dispense with a total fiction the democrats are peddling. Apparently, for technical concerns with chief Justice Roberts legal reasoning in the obama decision disqualifies her. Democrats are painting the judge as heartless and on a mission to scrap the health care law. Frankly, that is absurd. At only is judge barrett mother of seven, she has children with preexisting medical challenges of her own no one on this committee or anyone has any right to suggest that she doesnt care about access to health care or protection for the vulnerable. Now, getting back to the robertsl concerns about before the cataract opinion, first and i have four points along this line her comments dealt with roberts statutory interpretation of just one provision of the law. That provision is no longer even in a fact. In 2017, congress zero about the , the tax connected with the individual mandate. The question before the court this fall are entirely separate. She never ruled on the Affordable Care act, nor vote,ted on how she would meaning the judge how she would vote, so it is pointless to speculate, but we are going to get a lot of speculation during this election season, just two and a half weeks before the election. Now, a second point lawyers and legal academics often reasoning event when they have no disagreement with the outcome of the case. For instance, the New York Times recently reported ginsburg, before joining the supreme roet, wasnt really fond of v. Wade. She did not like how it was structured. Know why democrats have a different standard for you,. Udge merrick judge barrett now, a third point, it is blatantly inconsistent for the left to use this line of attack. We all know president obama said the aca legislative mandate was not a tax. Even liberal Jeffrey Toobin said roberts argument was not a persuasive one. Barrett sobarrett,s judge analysis of roberts legal so barretts analysis of roberts legal reasoning is more in the mainstream. The same opponents barrett vilify judge barrett as a threat to those with preexisting condition opponents vilify judge barrett as a threat to those with preexisting conditions. Those same people blocked the covid relief legislation that would have protected preexisting conditions. Republicans stood ready to move for but that bill and remain ready. It seems to me it is the other side who is really playing politics with health care during a pandemic. Is judge barrett already said a judge must apply the law as written, and further decide cases according to the rule of law, beginning end to end bash beginning to beginning to end. Wheny first question Justice Scalia came to my office for nomination i think i brought this up with every nominee, but i always bring up what is your attitude about legislative history. Me ask my question. Judge, you probably know how important it is. I want to know how important you,lative history is to when is it important to look at legislative history to interpret a statute, and other some circumstances where it is more important than others, and i would also like to get your view on legislative history compared to what i heard from scalia 35 years ago. Sure. Barrett i am very comfortable talking about the use of legislative history because it is a matter of interpretive philosophy. Is theverns the Court Statutes legislative history cannot supersede the text and should never substitute for the text of the statute. Justice scalia, as was well known, railed against the use of legislative history, and i think it was because at the time that Justice Scalia went on to the d. C. Circuit before he was on the Supreme Court, the use of legislative history had really gotten out of control, and many theing things legislative history being unclear, we turn to the other reliable guide and statutory interpretation, the statute. That had things backwards, and i think Justice Scalia try to clean that up and say the priority is the text and when the text answers the question, you dont go to legislative history, and there are some pragmatic reasons to be careful about doing so. Legislative history can be long. There is a famous quotation from judge leventhal that legislative history is like going to a Cocktail Party and kicking out your friend it could be easy to manipulate. As a general rule, i dont look to legislative history when i am deciding cases. I wouldnt say that it would never be relevant. Even Justice Scalia himself said there could be instances, for example, if you are trying to determine whether a term used in a statute how it was used if it had a technical meaning or how it was understood that that might be an appropriate time to consult legislative or Justice Scalia consulted it when he was tried to determine whether there had been an error in the way it was drafted. He looked at legislative history to see whether what seemed unthinkable actually was unthinkable. Sen. Grassley i would like to i a specific case had a big part along with senator lee and senator durbin in getting that passed in 2018. This is the most significant criminal justice legislation in a generation. Our permanent Justice System cannot just punish and deter. It must also rehabilitate and promote successful reentry into society. Act accomplished these goals through presenting and sentencing reform. It was well known that the first smarts goal was to make and effective changes to the criminal code and reduce cases of recidivism. I wanted to ask you about your dissent in the case. The decision was whether it applied to a defendant who sentence had been vacated. Here, the defendant had been convicted, but not resentenced at the time of the First Step Act becoming law. The majority opinion cited the plain meaning of the First Step Act and section four of three would apply to a defendant with a vacated sentence. Your dissent, as i understand it, shouldnt be heavily relied. N President Trump signed the First Step Act into law only two years rereferencingt congressional intent be relevant, and another question why did you find the majority relying on legislative history unpersuasive. Judge barrett we did the majority was a very, very difficult case. It was voted on en banc by our full court. The quote from my dissent that you are pointing to was actually we had a dispute about what the plain text of the statute required. That portion of my dissent that you just read was saying that i thought that the majority had permitted the policy goals of the act to supersede the text, and in dissent, i argued that the text judah line after somebody had been sentenced. So, if somebody had been sentenced on the day of the First Step Acts passage, and the letter the language was if the first that had already been imposed, i thought it was consistent with the approach of a Third Circuit had already taken and that meant if a person had already been through sentencing this case involved resentencing, and resentencing can happen years after. So, it didnt seem to my dissenting colleagues and i, looking in the statute, that the plain language of the text supported the approach majoritys approach to it. Sen. Grassley on my next question, you might have just partially answered it. In me go ahead with my lead and also a question. For all three of the act, in plain reading of the text i would like to discuss how it plain reading of the statute could lead to varying outcomes. The section in question contemplates when a sentence when it is relevant case law, a defendants sentence commit make it creates a clean slate. That means the defendant is placed in the same position as if you never been sentenced. You that the with law needs to be read and interpreted literally. So my question is this how could we come to different conclusions . Well, thattt language, that it did not apply to defendant on whom sentences had already been imposed my dissenting colleagues and i said well, the language is sentences it does not say invalid ittences, and one could say fast that someone had been sentenced, yes, he was sentenced, but that sentence was later vacated. You are right that the majority relied heavily on this clean slate principle, but in my review of the law, this clean slate principle wasnt really present because the sentencing reform act, for example, instructs District Courts are applying the guidelines of sentencing to apply those in effect on the date of the original sentencing, so i thought that the clean slate principles they were pushing a little too hard on it, and there is certainly unfairness you know, the First Step Act its policy is clearly to bring justice to sentencing. Line onnever you draw a who gets the benefit of a law, and this is acutely true in the sentencing area it is very difficult, and you know, some people on either side of the line will not get the benefit of the law, wherever you draw it. So, for example, in this case, there was a codefendant whose case came up together they had been tried together and initially sentenced together, but the appeal took longer to resolve and the resentencing took longer because a lot of delays. There was unfairness there in the majoritys approach because despite the fact that he was more culpable than sparkman, he want up with a sentence that was, like, 15 years less. That is the end of my questioning on that, but looking make a comment before i go to my next question to my position has always been that legislative history can be instructive with respect to the intent of the statute so justices should not completely disregarded. Certainly, i do knowledge of the legislative branch could be more careful about drafting laws, but i also think judges should Pay Attention to congressional intent as set forth in the history, when there might be a dispute about how to interpret the statute. Justice ginsburg, and her hearing, and you have discussed iis a little already, but think it deserves emphasis because you will go through a maybe this business of, and i know legitimately not been able to comment on a prospective case she said a judge sworn to decide impartiality can offer no forecast, no hints for what would show not only disregard for the specifics of this specific case, it would display this stain for the entire obviously weess. All know that is a ginsburg standard. The underlying reason for this rule is that making promises or giving hints on how a judge would rule in a case undermines independent of our system, but you will be asked about your personal views, as you have been on various topics, and how you might correctly decide. Of course, you know the judicial nominee should never promise bench. Uture votes on the you would be showing the opposite of independence. Do you agree with the ginsburg standard that it goes to the question of judicial branches independence for legislative history, and all you have to do is say yes because i have heard you talk about it. Judge barrett yes, i agree to ginsburg role reinforces Judicial Independence. Sen. Grassley now, here is something that a lot of people have suspicion i want to ask have you made any promises or guarantees to anyone how you might rule on the case or issue that might come before you if you are confirmed to the Supreme Court. Judge barrett i want to be very clear about this, senator grassley the answer is no one i submitted a questionnaire to this committee in which i said no. No one ever talked about any case with me. No one on the executive branch side of it, and that is one reason one reason you ask that question as a committee, you want to know that no nominee has made any precommitment. Just as i did not make any precommitments, i cannot make free commitments to this body kit it would be inconsistent with Judicial Independence. I know the answer to my last question, and chairman, i will reserve the rest of my time. The democrats claim you are being put on the Supreme Court said you can vote to repeal the Affordable Care act. Is that your agenda . If confirmed, is your goal to repeal the Affordable Care act . You committed to the president or anyone else that you will vote to repeal the Affordable Care act if confirmed to the court . Judge barrett absolutely not, i was never asked, and if i had been, that would have been a short conversation. Sen. Grassley i think the record shows you would be a faithful judge that takes each case seriously and approaches each case in a nonbiased way rather than with a policy agenda in mind. We can reserve our time. Graham ly senator absolutely. Senator leahy. I will introduce the letters. The letters by senator feinstein will be introduced into the record without objection. Senator leahy, are you with us . Sen. Leahy i think i am. Can you hear me there . Senator graham we can. Let secret get you on the screen. The floor is yours. Sen. Leahy qa very much. Thank youhing it very much. I was watching as you introduced your family. Your family is very important to you, as they should be. My wife and i have been married childrenars and our and our grandchildren are the most important things in our i it was good to see you introduced the family. Now, as a senator, another important part of my life is representing the people of vermont. Me talk about some of the things i have been hearing from vermonters. Understand vermonters walking to the grocery store, coming out of church, they express their views, and they are concerned with what the republicans Affordable Care act lawsuit on november 10 would mean for them. Now, do you know how Many Americans have obtained insurance through the Affordable Care act . Judge barrett i do not. Sen. Leahy it is more than 20 million. And you know how many children under the age of 26 are able to stay on their parents insurance because of the Affordable Care act . Judge barrett i do not. Sen. Leahy it is 2. 3 million. And do you know how Many Americans are covered under the Affordable Care acts medicare expansion . Judge barrett i do not. Sen. Leahy it is a little more than 15 million. I look at that because i look at ie people from vermont think of alex johnson, a single mother, a Childhood Cancer survivor she works as a nanny in south burlington, vermont. Relies on other testing. She tells me she stays awake at night worrying about losing medicaid. If republicans are successful in what theyre trying to do on and 600 10, then alex 60,000 other vermonters enrolled in medicare expansion will be left behind. In the context of covid19, that seems a preexisting condition. Do you know approximate how many million americans have tested positive for the coronavirus and survived . Judge barrett i do not. Sen. Leahy that is more than 7 million, 700,000. Those are people now considered to have a preexisting condition. Common of the most preexisting conditions is diabetes. The cdc estimates that 34 million americans, about one in 10 americans, have diabetes. This shows that the acas medicare expansion is the single most important factor to expanding access to affordable insulin. Yesterday, a vermonter was diagnosed with diabetes at the age of 25. For years she has depended on medicaid to keep her alive and out of bankruptcy. Recently claimed he has made insulin as cheap as water. I wish he had told the truth on that. We all know it is not. Leslie now has the insurance to pay for insulin and without this insurance, do you know how much, because unlike what the president says, insulin is not as cheap as water you have an idea of how much outofpocket expenses for leslie would increase . No, i do not. Sen. Leahy i wouldnt expect you to. There is no reason why you cost would leslies more than triple and go up by 11,215 a year. For in a state with a the per capita income is 33,000. That younot suggesting are callous or indifference indifferent to the consequences if the Affordable Care act is overturned. You know these are real cases, and i think you are a sympathetic person, but i do believe that the president selected you because he wanted somebody with your philosophy, and he had a reason for it. Are going to pretend that it is a mystery, and that is what some of my done whatve Justice Barrett would do it. President trump has made it clear that she has promised his nominees would overturn the aca it is even in the official Republican Party platform. He said we want to terminate health care under obamacare, the aca. And within hours of nominating repeated himself that the aca would be overturned. Mentioned my friend, the chairman, senator graham, knows the president as well as anyone here. He goes golfing with him. He spends a lot of time with them. And with him. And i think chairman graham knows that the president would not repeatedly promised the American People that his judges would overturn the aca if he didnt mean it. I think senator graham would have to agree that the president wouldfident judge barrett side with him on november 10. That is not necessarily a question for either one of you and of course the chairman has an opportunity to respond in his time if he wants. We know the president s an issuee has not been to overturn the Affordable Care act. In fact, i counted it up the other day i was surprised that the answer, you know, judge barrett, republicans in congress have voted to repeal or gut the in thee than 70 times last 10 years, and when they failed, they turned to the court. Do you know how many republicans on this committee have joined amicus briefs urging courts to . Verturn the aca judge barrett how many republicans had devoted was that the question . Sen. Leahy do you know how many republicans had joined amicus brief urging a judge to overturn the aca. Judge barrett i dont. Im having a little bit of trouble hearing, senator leahy is there a way for the volume to be turned up . Senator graham yes, maam. Sen. Leahy i am sorry for that. Senator graham it is on our end, senator leahy that is ok. Can you repeat the question . Sen. Leahy how is it coming through now . Senator graham very good. Judge barrett very well, thank you. Know, im here because i do not think it is safe for you or anybody else to be there, but my question is do you know how many times republicans on the committee you are sitting before have joined amicus briefs urging courts to overturn the Affordable Care act. Judge barrett i do not, no. Sen. Leahy it is at least nine by my count. In fact, they have already weighed in on the november 10 case. Two weeks ago the senate voted on whether to side with the president President Trump on and 11ersus california of the senators on this committee cited with the Trump Administration and asked to kill the aca. Now, i understand that you will not share your views on texas , and you arernia concerned that commenting might that would appear before you indication of which way you would will. Is that correct . Judge barrett rule . Is that correct . Judge barrett yes, that is correct. Sen. Leahy ok. My concern is that you have already given us every indication. Every time you weighed in, it hasnt even been close. You repeatedly disagreed with chief Justice Roberts. From what you said, you clearly believe that the statute is unconstitutional. The president has made very clear he expects you to side with him, and let me tell you another area where he expects you to side with him. He expects you to side with him in an election dispute. He said he needs a ninth justice because he is counting on the court to look at the ballots, and he says the election will be rigged. Requiresstatute, recusal where impartiality might recently reasonably be questioned. Now, when the president declares he needs his nominee to secure his reelection, and then the nominee is rushed through the senate in record time during the middle of an election, some are going to question that nominees impartiality. To protect confidence in both you and the court, would you commit to recuse yourself from any dispute that arises out of the 2020 president ial election . Judge barrett senator leahy, i want to begin by making two very important points, and they have to do with the aca and any election dispute that may or may not arise. Withe had no conversations the president or any of the staff on how i might rule in that case. It would be a gross violation of Judicial Independence for me to make any such commitment, or for me to be asked about that case and how i would rule. I also think it would be a complete violation of the independence of digital of the judiciary for anyone to put a justice on the court as a means of obtaining a particular result. That is why, as i was mentioning, i think to senator grassley, the question near that i fill out for this committee, makes clear that i have made no precommitments to anyone on how i would decide a case and that is out of respect for article three and its designation of the judiciary as a coequal and independent branch of government. On the recusal question sen. Leahy i must say, you gave answer when i talked with you. I had a question, of course, because one of the members of he judiciary Committee Said would not support you unless you had a he had a commitment. Hat you would vote that way i understand what you are saying is notwithstanding what a member of a member of this committee has said. You have not made that commit to anyone, is that correct . Judge barrett i have made no commitment to anyone, not in the senate, not over at the white house, on how i would decide any case. Is. Leahy the reason i ask we also have the question of appearance. The judge joan lawson of sixth circuit sat next to you during your 2017 hearing. She was confronted with this issue as a judge on the michigan Supreme Court in 2016. Then president elect trump challenged a ballot recount. She was on a short list for the Supreme Court at the time and she found being on the short list was a conflict and required her recusal. You will all you were also on the short list then, and you were actually chosen. Now he is not the president elect. President , and when the president makes a similar claim as he did when judge larsen looked at, he is counting on you to deliver him the election. Adge lawson said that was conflict for her and would have to recuse. Judge barrett i am not familiar with judge larsens decision, but she clearly made it whence it was presented to her in the context of an actual case where she had to out way her obligations. If presented to me, i would, like judge larsen, apply that recently read a description by Justice Ginsburg of the process that Supreme Court justices go through in deciding whether to recuse, and it involves not only reading the statute, looking at the precedent, consulting counsel, if necessary, but the crucial last step is that while it is always the decision of an individual justice, it always happens after consultation with the full court. So i cannot offer an opinion on recusal without shortcircuiting that entire process. Well, i think what i worry about, and what i have again, is if over the courts are politicized, from the Supreme Court down to other course [indiscernible] i have always assumed judges are totally impartial, no matter what president had nominated them, but this president has not been subtle in that he expects his nominee to side with him in an election dispute. I am thinking of the credibility of our federal courts, and i hope you would at least consider that the president has said he needs a ninth justice because he is counting on the court to look at the ballots in case he loses, because if he lost, then the democrats have rigged the election. The recusal statute, as you know as well as anyone, requires a justice to recuse herself in any proceeding in which impartiality. Ight reasonably be questioned now, whether you like it or not, and i suspect you probably do not, the president has placed both you and the Supreme Court in the worst of positions. So, let me ask you a different kind of a question i certainly agree it is critical for americans to have confidence in the Supreme Court. Is that true . Judge barrett that is true and i agree with your earlier statement that the court should not be politicized. Sen. Leahy thank you. Of i voted for an awful lot republican and justices,nominated as i did for chief Justice Roberts because i wanted to keep the Supreme Court and other courts out of politics, but when the president repeatedly aslares he needs his nominee a way of securing his reelection n and that nominee is then ra through the senate in the middle of that election, you could see where the nominees impartiality might be questioned. Request is, in protecting confidence in both you and the court, are you able to commit to recuse yourself from disputes that arise out of the 2020 election . Leahy, irett senator commit to you to fully and faithfully apply the law of recusal, and part of that law is to consider any appearance questions, and i will apply the factors that other justices have before me in determining whether the circumstances require my not, but i cannot offer a legal conclusion right now about the outcome of the decision i would reach. Sen. Leahy that is a boilerplate response on recusal. Another case you laid out the case for blocking arguingt obama nominee, Justice Scalia is the staunchest conservative on the court, and werece scalia and i personal friends and i voted for him and i agree with you on that. That nominating judge garland would shift the balance of the court and it was not a lateral move. That was your quote. Now you are nominated to replace Justice Ginsburg, perhaps such staunchest champ enforceable the court, you claim the philosophy of Justice Scalia is yours, and he was on the opposite side of Justice Ginsburg and civil rights cases it would you say that replacing Justice Ginsburg by yourself is not a lateral move like you you support of the blocking of president obamas nominee, judge garland . Judge barrett senator leahy, i want to be very clear. That is not quite what i said in the interview. It was an interview i gave shortly after Justice Scalias death, and at that time both sides of the aisle were arguing that president supported their decision and i said wow i had not done the research myself, my understanding of the statistics was that neither side could claim precedent that this was a decision that was the political branchs to make. I did not say which way they should go. I said it was the senates call. I did not advocate for public debt of a clue support the blockade of judge garlands nomination as you are suggesting. Sen. Leahy that is not what i am suggesting. You said it would not be a lateral move. Judge barrett what i was suggesting is that it was unsurprising that there was resistance as a political matter to the nomination because it would change the balance of the court. Was surprised there was resistance and surprise there were so many come at that time, republican members of the Judiciary Committee who had stated publicly before the vacancy that they thought marek garland would be a good person to have on the court, someone who could appeal to both conservatives, liberals, and moderates. Judge barrett i have full respect for judge garland. Sen. Leahy i beg your pardon . Judge barrett im sorry i missed the first part could you repeat the question . Sen. Leahy it was not a question. I was just saying that we had many members of our committee, a number of republicans who prior to the vacancy said marek garland would be a good person for president obama to nominate because he could appeal to moderates, conservatives, and liberals, and then their response was we cannot have a by one partyrmed that is in control of the senate, and nominated by the president of another party. I was here when democrats controlled the senate and president reagan nominated Anthony Kennedy and in an election year, democrats confirmed. Another area a threejudge panel of the seventh circuit struck down three provisions of an indiana law ,estricting reproductive rights stating with the state of indiana requesting an en banc review of just one of the provisions. Of course, whether to review the case, or leaving intact the Panel Decision to strike down joined the justice lookedent, but then it for a second provision called the eugenics statute. Judge barrett, the issue before your court was a narrow 1 whether you limit [indiscernible] dissenters,t we dissented on the fetal remains disposition portion which the Supreme Court roundup summarily reversing the pen appeared on the eugenics portion of the bill, it is to the state of indiana did not seek en banc rehearing on that, but we had many other states enter the case urging us to take that claim up, and what just just judge easterbrooks dissent did was explain why he thought with an open question, but one thats left to the Supreme Court, and we did not reach any conclusion with respect to it. Whatever position you took would not have changed. He final decision of the court now, in 2006 you signed an open and onthat was published one side the advertisement of roe v. The legacy wade, and on the other side you. Rote that you oppose abortion i have certainly voted for some judges who take that position, but not mentioned in the letter, the organization that led the effort believes that in vitro fertilization or ivf is equivalent to manslaughter and should be prosecuted. Ivf is pete that amount to manslaughter . Judge barrett senator, the statement that i signed, as you signed itly said i on the way out of church it was consistent with the views of my church, and it simply said we support the right to life from conception to natural death. It took no position on ivf. Sen. Leahy i understand that, and as i said, i voted for judges who take the same position you do, but i am asking, do you agree with the st. Joseph county right to life ivf sponsored the ad that is tantamount to manslaughter . Senator, itt well, signed the statement that you and i just discussed, and few are right that the st. Joseph county right to life ran an ad on the next page, but i do not even think the ivf you that you are expressing was on that page, and regardless ive never expressed a view on it, and for the reasons i have already stated, i cannot take policy positions or express my personal views before the committee because my personal views dont have anything to do with the way i would decide cases and i dont want anyone to be unclear about that. Sen. Leahy let me talk about some of the positions you have taken. Before you became a judge you were paid by the alliance for five freedom lectures. Regionalism n now, i recall being asked about some of their controversies. Were you aware of the decades recruit allies homosexuality . Judge barrett i am not aware of those efforts. No. Sen. Leahy ok. One of the Reading Materials they had for the program that you lectured to several times spoke of that. They filed a brief in lawrence in texas supporting support of state laws punishing ,rivate homosexual activity whether youw believe being gay or is right me,rong is irrelevant to but my concern is you worked with an organization working to for loving aeople person that they are in love with. That is what worried me. I wasnt sure if you wanted me to answer that. Sen. Leahy go ahead. Judge barrett mike spence with the Blackstone Program which i spoke was a wonderful one, gathering the best and brightest christian law students from around the country, and as you said, i gave a onehour lecture on regionalism. I did not read all of the materials the students were given to read. That nothing to do with my lecture. I enjoyed teaching the students about what my expertise was, constitutional law, and none of my expenses were any ever indicative of any kind of dissemination on the basis of anything. Sen. Leahy as you know, samesex marriage, and senator feinstein mentioned this in the beginning, has been legal in my state and has been for some time. The you feel that should be a crime . Judge barrett samesex marriage . Sen. Leahy yes. Judge barrett overfill says there is a constitutional right to samesex marriage. Sen. Leahy and you agree with that . I am not going to give a thumbs up or thumbs down a to any precedent. It is president of the Supreme Court that gives samesex couples the right to marry. Onceleahy justin kagan wrote an opinion that said it is believe thehat they president is wrong, [indiscernible] do you agree with that . Judge barrett i do agree with that. The doctrine itself requires that. Having started the argument in the court of appeals, i thank you for my answer. Senator graham i dont mean to interrupt, i know you dont have a clock in front of you, we are about a minute over. Sen. Leahy im sorry, mr. Chairman. I do not have a clock. Senator graham i totally understand. Sen. Leahy i appreciated, and i look for to the next round of questioning. Senator graham well make sure that happens. Very briefly, before we go to senator cornyn, senator laying mentioned my time with the president i think i will all of us on this side were consulted by the president regarding how to fill the opening. He gave me a small list of names, all women you were on it, and i was enthusiastic about everybody come in very enthusiastic about your nomination by the president. I play a lot of golf with the president , i guess. I have enjoyed it. We talk about a lot on the golf course some policy, killing solemani, we talked about that. I promise ive never talked about severability with the president. Senator cornyn. Senator cornyn speak for yourself. Good morning, your honor. Judge barrett good morning, senator cornyn. Senator cornyn most of us have multiple notebooks, notes, can you hold wn and answering our questions . Is there anything on it . Judge barrett the letterhead that says United States senate. Senator cornyn that is impressive. Judge, the best i can understand injections to your nomination or not to your qualifications, your training, but it is that you have, or you will violate your oath of office. Insulting. Terribly they suggest that you cannot be case youin deciding a have not even participated in yet. I find that insulting as well. Now, maybe almost as pernicious as attacking someone for their faith and suggesting that that disqualifies them from holding a onlic office is the attack independence, something chief justice rehnquist, among others, observed that the crown jewels of the american constitution and the american system, but i want to take a little walk down memory lane here. There are a lot of people that guest house judges would , andlly rule on cases almost always they have been spectacularly wrong. As struck by just a couple harry truman said whenever you put a man, and he is talking about a man, but a man or woman, on the Supreme Court, he ceases to be your friend. He said some more colorful things, too. But, Theodore Roosevelt said about Oliver Holmes junior i could carve out of a banana a judge with more backbone than that. As i think about people like harry blackmun, nominated by richard nixon, who wrote roe v. Wade as i think about war and burger they were called the minnesota twins, and over time they became polar opposites on the court i think about the gorsuch for his unwillingness to make a prior commitment on lgbt issues. Caseote the boss talk extending title vii of the Civil Rights Act for gay and transgender individuals. Were those predictions wrong. Then, since we are talking about the aca, the aca versus acb, i guess, chief Justice Roberts was the one who wrote the opinion upholding the Affordable Care act, as you know. Say all of just these predictions about how judges, under our independent decisionswould make are just pure speculation, but i think they are worse than population i think they are propaganda in order to make a political point. So, judge, you are not willing to make a deal. No, senatort cornyn, i am not willing to make a deal, not with the president , not with anyone i am independent. I would just like to hear, maybe, some of your thoughts on the overfill case, which established, as you said, constitutional right to samesex marriage, part of that decision struck down struck down the defense of marriage act, correct . Judge barrett yes, i believe so. Sen. Cornyn that was a bill that joe biden voted for. Judge barrett i dont know. Sen. Cornyn i do. Joe biden voted for, pat leahy and bill clinton signed it into law. Im not asking to give the details, but differentiate for everyone listening on what the approach of a legislator is in voting for a piece of legislation as opposed to the role of a judge interpreting the constitutionality of a piece of legislation are they the same, or are they different . Judge barrett they are quite different. A judge is not expressing a policy view. I tell my students in constitutional law that newspapers due course a disservice when they say things like, the court favors samesex marriage, or just giving the headline without showing any of the reasoning that goes into it. Courts are not expressing a policy preference. They are digging in, looking at the president , and even when the result cuts against policy practices preferences, judges are expected to follow them. Sen. Cornyn that is right, and the difference between us and you is you dont run for election. Judge barrett that is right. Sen. Cornyn usually run on a platform. Judge barrett you dont say if i am confirmed, i will do this or that you dont do that, do you . Holy,barrett it would be loudly inappropriate for you me to do so. , your mentor, Justice Scalia said Something Back in 2005 that i find intriguing, but reassuring. He said if you are going to be a , youand faithful judge have to resign yourself to the fact that you are not always going to like the conclusions that you reach. If you like them all the time, you are probably doing something wrong. Do you agree with judge barrett i do agree with that. Choose policy. To it is my job to interpret those laws and apply the facts in particular cases. They dont always lead me to results i would reach if i were queen of the world. Power tont have the improve my policy preferences or choose the results i prefer. That is not my role. I have to go with what you guys have chosen. The cornyn why would American People surrender their right to govern themselves through their elected representatives and through the constitution . The nine people who dont run for election and serve for life. Why would the American People do that . Judge barrett part of the rationale in the rule of law and court judges taking great care to avoid imposing policy preferences is that it is inconsistent with democracy. Nobody wants to live in the world of amy. Im sure my children dont want to do that. I cant as a judge get up on the bench and say you will live by my policy preferences because i have tenure and you cannot kick me out if you dont like them. Thankfully under the constitution, even if the Supreme Court strikes down a statute, congress could come revisit that topic. And do it in a way that does not violate the constitution as determined by the court. Ultimately, it does not happen very often ultimately we could amend the constitution itself, correct . Judge barrett that is correct. Sen. Cornyn the basis of legitimacy of governmental power is with the governed. Do you agree with that . Judge barrett i do. Sen. Cornyn not what nine people in black robes, the decisions they make. That is not the final word. Judge barrett we are a government of laws, not of men. Sen. Cornyn im almost through but i cannot pass up the opportunity to ask you a question about the establishment clause i did with Justice Kavanaugh and Justice Gorsuch as well. It is born out of my frustration, one of the couple times i had a chance as attorney general to argue before the Supreme Court. This was about a commonplace before Football Games students would volunteer to offer invocation or inspirational poem or saying. Sued the school district. They made it it made its way to the Supreme Court. Im not going to ask your opinion on the outcome of the case. Aboutroubles me the most that experience is when the Supreme Court struck down or of theat practice they saident clause, the constitution requires neutrality. Speaks ofs approach hostility toward religion. Could you just talk a little bit about the establishment clause not in regard to any particular but what the courts over time have tried to do to enforce the mandate of the constitution. Judge barrett when i interviewed for my job with Justice Scalia, he asked what area of the courts precedent i thought needed to be better organized. The firstff i said amendment. He said what do you mean. I fell down a rabbit hole of trying to explain the complicated area of the law. How might be ones way. It is a notoriously difficult area of the law. There is tension in the court cases. Im giving you no better answer then i give to Justice Scalia that day. A sensible way to apply both of those clauses. Sen. Cornyn i wish you well. Judge barrett thank you, senator. Sen. Cornyn i will reserve the rest of my time. If it is ok with the committee, i will have senator durbin, we will break for about half an hour for lunch. Do need a break . Judge barrett that is fine. Sen. Durbin thank you for being with us for this marathon questioning. Who came up with this insulting notion that you might violate your oath . Where could this idea have come from . Could it have come from the white house . Could it have come from the president s tweets of what he expects a spring Court Nominee to do politically for him. That is where it originated. You have said very clearly today without equivocation you will not be influenced by President Trumps importuning or the importuning of this committee or anyone else. Ideanotion that this whole that you are being used for political purposes is a democratic creation. Read the tweets. I would like to say i wont spend a lot of time defending the Affordable Care act, although i think it is the most important voter i have cast as a member of congress, period. When the chairman opened up and said what he did, i was puzzled. Three states get 35 of the money, how could that possibly be true . Those states decided to extend medicaid coverage to people who live through states and his did not. As a consequence, fewer people in South Carolina have the protection of health insurance. Those that do are paying for their services. Those that dont are not. I would say there is an explanation as to why some states are spending more. There was a republican governor by the name of mike pence who decided to break with other republican governors and extend medicaid coverage. I think it was the right thing to do for indiana as it was for illinois. That was part of the reasoning. The Affordable Care act is at the heart of this from the democratic side. The consideration for that case could change america for millions of people. I have with me today another group i would like you to be aware of. Pretty amazing people. Is the williams family. They live not far from chicago. From left tor sons right. Matt, joey, tommy, and mikey. Matt was diagnosed with type 1 diabetes when he was 13. The other three were all born with Cystic Fibrosis. Joey is 24, mikey is 21. Mikeys twin tommy passed away from complications. This is the last photo that was ever taken of their full family. Heres what they wrote me. Anothert imagine losing child. People would Cystic Fibrosis required daily medication, doctor visits, special care. People with preexisting conditions like Cystic Fibrosis cannot will be discriminant cannot be discriminated against. Capsensure a ban on annual of a forced requirement Mental Health services. People with Cystic Fibrosis and other preexisting conditions need Affordable Health care to live longer, healthier lives. That is why we keep bringing this up. Theres a chart here. On the republican side there are some obvious controversy as to whether we are right or wrong. They have their health care and lives hanging in the balance. 240 2000 people would lose Insurance Coverage if the Affordable Care act were eliminated. 2 million living in that state have preexisting conditions. The list goes on. Thank you. Heres what it comes down to. Youve been critical in the we naturally draw the conclusion that there will be a third strike when it comes to of texas and california. You said it wont affect preexisting conditions. If the petitioners have their way there will not be an Affordable Care act to protect preexisting conditions. Give us the insight of how you could be so unequivocal in opposing the majority the but have an open mind when it comes to the Affordable Care act . Judge barrett thank you for that question. It gives me an opportunity to make my position clear. When i wrote about those decisions, i did critique the statutory interpretations. As i mentioned before, my description was consistent with the way chief Justice Roberts described. I think your concern is that because i critique the statutory reasoning that i am hostile towards the aca. That is because im hostile that i would decide a case a particular way. I assure you i am not hostile to the aca. Im not hostile to any statute that you pass. The cases in which i commented and we can talk at another time i guessed about the context, the distinctions between academic writing and judicial decisionmaking. Those were entirely different issues. Theuse i critique interpretation of the mandate or the phrase established by a there is anthat entirely different legal question, i would reach a particular result that im hostile. That is not the case. You make the policies. Sen. Durbin lets talk about that from a different perspective. Have you seen the george floyd video . Judge barrett i have. Sen. Durbin what impact did it have on you . Judge barrett as you might imagine, given that i have two black children, that was very personal for my family. Was with the boys on a trip in south dakota. It was very difficult for her. Difficult for my i had to explain this to them. My children to this point have had the benefit of growing up in a cocoon where they have not experienced hatred or violence. That there would be a risk for has been an tally ongoing conversation. It has been difficult for us like it has been for americans all over the country. Durbin i would like to ask you as an originalist, i cant imagine you could separate the two. Where are we today when it comes to the issue of race . Some argue it is fine. Everything is fine and you dont about theach children history of discrimination. Others say there is an implicit bias in other aspect of American Life that we have to be candid. Others go further and say it is systemic racism. Poignanto be much more in our dressing it. How do you feel . Judge barrett i think it is uncontroversial and obvious statement. We just talked about the george floyd video. To putting my finger on the nature of the problem, whether you say it is outright or systemic racism, or how to tackle the issue of making it are policyse things questions. They have been in the news and discussed all summer. As i did share my personal experience, very happy to discuss the reaction of the family to this george floyd video giving broader statements and making broader diagnosis about the problem of racism. Durbin i would doubt that. I dont think you could be as passionate about originalism in the history behind language we have had for decades, if not centuries. Case that iyou to a have read or reread. You know the case well. It has already been referred to. You have had your day in court. Wrote 37 pages of dissent. You gave the court a pretty full accounting of your thoughts on the subject. They invented some pads to put in a shoe to be sold to Older Americans under medicare to relieve foot pain. He designed them and submitted them to medicare and didnt get the approval he was looking for. Andead, sold them represented too many customers that they had been approved by medicare. He was charged with fraud. This was the matter of misapplication of law. When it was all said and done, ricky cantor and love spending a prison payingl somewhere near 300,000 in penalties and fines and 27 million in a civil settlement on this issue. This was not a casual tuning. This man was a swindler. He was taking the federal government for a ride as well as other customers and misleading Senior Citizens on his product. Then he decided having left prison it was fundamentally unfair that the law says if you have been convicted of a felony you cannot own a firearm. I dont know what his appetite is when it comes to firearms. When it is a revolver or an ak47. He said it was just mail fraud, you are taking away my Second Amendment rights. Two out of your three colleagues basically said sorry ricky, you have forfeited your right to own a firearm because of your conviction of a felony. You took a different approach. Exactly the opposite approach. Earliest citation i see is 1662 to figure out what is going on here and whether or not he had to have committed a violent felony to forfeit his right to own a firearm. Close toing the facts what you remember . Judge barrett i dont remember some of those details but ricky cantor was convicted of selling fraudulent shoe inserts. It was a felony. 27 Million Dollars settlement along the way. I would like to get to your thinking on this. Justice scalia expressly said im not taking away the limitations impose based on felonies. This man who was your , you told us he was wrong and it had to be a violent felony, could you tell us why a . Judge barrett in my court theres precedent saying that phrase does not control as my colleague has said that judicial opinions are statutes and should not be read as if they were. It wasnt about the scope of the right. To felons. Pplication now fullyge was diving down into it. What i did was apply the methodology, both Justice Scalias majority opinion and the dissent, used originalist methodology to answer that question. I concluded that based on that history, one couldnt take the right away because one was a felon. There had to be a showing of ness. Rous i didnt rule out that they could make that showing about ricky cantor. Sen. Durbin i want to stick with this for a moment more. Im honored to represent the city of chicago in illinois. It has a great city but it has great problems. One of them is gun violence. We know in america, 100 americans are killed every day by gunfire. 40,000 per year. Peopleago more than 3200 have been shot just this year. According to cities gun trace reporting, the majority of illegally used or possessed firearms recovered in chicago are traced back to states with less regulation over firearms. Such as indiana and mississippi. Loanreport found indiana was the source of 21 of all of chicagos recovered crime guns. We know how it works for you live, you know how it works. There is traffic between chicago, indiana, and michigan going on. Gun shows are held in gary, indiana. They sell these firearms without background checks. These gang bangers and thugs full up fill up their cars and head into the city of chicago and kill everyone from infants to older people. We are trying to get indiana to do at least background checks. We are trying to apply the you disqualifyif yourself to felonies and mental illness. You want to take away part of that protection. If you eliminate felonies and just confine it to violent felonies, you are opening up more opportunities for people to buy firearms, are you not . Judge barrett you referred to buyingmbers and thugs guns in indiana and taking them across the border. Certainly, if they had felony convictions, isaac members and gangs, nothing says the government can deprive them of firearms. Nothing says in my opinion they they deprive ricky cantor, just have to make the showing of dangerousness before they did so. Legality ofnd the background checks or gun licensing. Durbin the majority zeros and. What you said is impractical, that we will go casebycase. Then they go on to produce evidence. You know these well. Where the likelihood of committing a violent felony after being convicted of a felony is pretty dramatic. They are saying dont force us to make it casebycase. We wanted to be by category. Dealing withbe thousands if not millions of people buying firearms. Even those who are socalled nonviolent felons have a propensity to commit violent felonies in the future, are you not . Judge barrett there was no evidence of that in the case. Statute thatederal has to make judgments categorically. Beyond thenk that is courts in any area to identify which felonies are violent and which felonies are not. Page 21bin lets go to and what the majority of the court said. Most felons are nonviolent. Some of the felony conviction is likely more likely than a nonfelon to engage in illegal drawing going use. Offenders found that one are five one out of five were rearrested in three years. The evidence is there for the court to consider. You ignored it. Judge barrett i did not ignore it. That evidence in the study were unclear. I cant remember as i am sitting here the details of all of the specifics. Thecall saying something in opinion about the reliability of those studies. Someonent say whether had been convicted of a nonviolent climb crime and had later been convicted of a violent crime. Wide range of a things. Broadtates that cover conduct. Not all of which is indicative of someone abusing a firearm. I would like to take you back in history for a moment. When the second memo was written and you did your analysis of it, we were talking about the likelihood that the person could purchase a muzzleloading musket. Virtualow talking about military weapons. Maybe in originalist pins all that thinking to that musket. I have to bring it to the 21st century. The 21st century has people being killed in the streets of chicago because of the proliferation of firearms. Homee bring you closer to and tie up the george floyd question. Theres also a question of whether the felony disqualifies you from voting in america. The history on that is pretty clear. In an article the american manyal of sociology found voting bands were passed in the 1860s and 70s with the implementation of the 15th amendment. It goes on today with Voter Suppression. In the in reconstruction jim crow era, that was used. Tony conviction was used to disqualify africanamericans from voting in the south and many other places. Than 6 million americans cant vote because of a felony conviction and one out of every 13 black americans have lost voting rights. In your dissent you said disqualifying a person from because of a felony is ok. When it comes to the possession of firearms we are talking about the individual rights of the Second Amendment. We are talking about the civic right. However you find it. I dont get it. Saying a felony should not disqualify ricky from buying an ak47. Judge barrett what i said was that the constitution states have the freedom to deprive felons of the right to vote. I express no view on whether that was a good idea or whether they should do that. It was irrelevant what limits if any there might be on a states ability to curtail felon voting. Sen. Durbin could you not distinguish the Second Amendment right from the right to vote calling one individual right and the other a civic right . Judge barrett that is consistent with the language in the Historical Context and it was part of the dispute and whether the Second Amendment was an individual right or a civic one that was possessed collectively. Everyone was treating voting as a civic right. I will tell you sen. Durbin i will tell you the conclusion is hard to swallow. Cantorion that mr. Should not be slowed down on his way to buy a firearm. Then to turn around on the other hand and say when it comes to taking away persons right to vote, that is the civic duty. That goes back to the original george floyd question. That was thinking in the 19 century that resulted in Voter Suppression and taking away the right to vote from millions of africanamericans across the country and still continues to this day. It, do you . The Supreme Court has said it is a fundamental right. You might be taking my statement out of context. I said in that opinion, distinguishing between it was a descriptive statement comparing it to stripping felons of Second Amendment rights. About what theew constitutional limits of that might be or whether the law should change. That is a contested issue in some states that are considering it right now. That was not the subject of cantor. Durbin it was part of your dissent, discussing the right to vote. Im afraid it is inescapable. You have to be prepared to answer this kind of question. I read it and thought i cant imagine she is saying this. We will leave the confirmation hearing briefly to fulfill our more than 40 year commitment for life congressional coverage. In for a pro forma session. We will return to the hearing momentarily. Prayer will be offered by the guest chaplain, reverend benjamin hogue, Lutheran Church of the reformation, washington, d. C. The chaplain let us pray. God of wonder, god of grace, let streams of your