Misunderstood him seems to have suggested that it is a political talking point for you to decline to indicate how you would rule on a particular case or a particular type of case. To the extent that is what any colleague suggested, i remind that colleague that is just wildly incorrect. Fldly incorrect with judicial ethics, federal law, it was laid out by jews greater Justice Ruth Bader ginsburg nearly 30 years ago. It is imperative that you uphold those standards. I applaud you for doing so. On no planet is it appropriate for you to suggest that it is a political talking point for you to say im not going to indicate how i will rule in a particular case. Say someburg did of this has been quoted today. I will quote again. Judges in our system are bound to decide concrete cases, not abstract issues. A judge could offer no forecast, no hints because that would show not only disregard for the specifics of a particular case but it would display disdain for the entire judicial process. Similarly, you are considering capacity for independent judging. My personal views on how i would vote on a publicly debated issue. Im not what you will be closely examining. That is what she said. She said it well. It was true in 1993. It remains true today. The line of questioning that you just finished, you just completed. I too have read the case. I am thrilled that we have a whenho is willing looking at someone whose rights are about to be taken away thrilled to have a jurist who is willing to consider the review. Unusual to consider someones Constitutional Rights before having an enumerated consul eat constitutionally participated right removed . Judge barrett that would be very unusual. That would not be wise, would it not . Judge barrett to be careful, i would say the 14th amendment guarantees each individual due process before liberty is taken away. Sen. Lee i appreciated the analysis you undertook. Making clear that you are right in this area. Back to theust date 60s. They dont just date back to the 1780s or the 1760s. They date back at least to the 16 60s. They go way back. Theres a lot of history that went into what became the second amendment. Partisaned not just conflict but conflict between the king and subjects. It was between protestants and catholics. There was a lot of violence that went into that. I appreciated your historical analysis. Your willingness to be thorough. There are somewhat constitutionally protected rights. You will do your homework. You will do it even if you have colleagues. Judicial leadership involves willingness to stand alone. , one of the things that came out to me as i read your opinion is your commitment to contextualism and original as are real. This is the kind of thing you cannot fake. I agree with senator durbin. It does not guarantee a particular result. Particular outcome in any particular case. Indicate a preference. Tell me why they are important to you. I think both statutes and the constitution are law. They derive their democratic legitimacy from the facts and they have been enacted by the representative or in the case of the constitution making process. I have an obligation to respect and enforce only that law that the people themselves have embraced. The law of the american people. I think originalism in contextualism boil down to the commitment to the rule of law to not disturbing or changing or what that law requires. Lee the intent of a lawmaker or drafter of the constitutional provision that we are looking at or is it the original Public Meeting . What is the difference between those two . Judge barrett it is the original public meaning, one thing i told my students in constitutional law is the question is not what would James Madison do. We are not controlled by how James Madison would perceive any particular problem. The law is what the people understand it to be. Not what goes on in a legislatures mind. What you think in your mind rather than what passes is what is the law. Of letsgardless id pass a bill lets say pass a bill, i am the sponsor. Heres what i think about it. Theres what i intend to do. I put that statement into the legislative record. What if any impaction that statement have on the meaning of law xyz once it becomes law . Judge barrett nothing you have to get it into the law itself. Legislative history is not what goes to the process of bicameralism. How lee regardless of passionately i make that point in whatever gloria speech i give in support of bill xyz. It doesnt make a difference. Judge barrett im sure the speech would be glorious. The point you made would probably be made by others of the case too. You are functioning as an advocate when you make the statement but not speaking as a it is the fulle body that speaks. Sen. Lee we have seen posters weng up over and over again have some stories about people whose lives have been marked by difficult things they endured. We continue to adopt the relevance of things like that here. They have the Supreme Court of the United States, it has anything to do with the health care. Think anyy you individual Americans Health care status is or is not contingent on your Supreme Court nomination in the United States. Tied on your Supreme Court nomination to the Supreme Court of the United States . Judge barrett i had no conversations with anyone in the white house about that case. Extent ofre to the succession that i have an agenda , that i want to strike down. Eoples protection that is just not true. As i have also said repeatedly, haveoliciy preference i doesnt matter anyway. That is your job. Sen. Lee it is the job of policymaking branches of government. The job of a whatever combination of state and federal lawmakers and other policymakers have. A judge is not a policymaker. Congress is in charge of making sure that law works. Or that law ends up being stricken down. It is our job to replace it with something that does work. Or inr constitutionally another respect. That is our job, not yours. You made some comments a few years ago. Comments with which i wholeheartedly agree. Criticism with chief decisionoberts and his , i will not ask you to weigh in on this. Me now. Not relevant to i set this up for reasons i will explain in a moment. He rewrote the Affordable Care act not once but twice. Wall to save that law. That law was unconstitutional. Blatantly unconstitutional. He acknowledged the law as written couldnt pass constitutional measure. He rewrote it not just once but twice in order to save it. That is water under the bridge. He did inexcusable that that. He misused the judicial authority. That case has absolutely nothing to do with california versus texas. It has absolutely nothing to do with the question of severability in that case. Would be fair to say that my very strong opinions that i have just expressed do not indicate orwould feel orlean lean as a jurist in california versus texas . Judge barrett i think you are correct. The legal issue is entirely different. It is its own independent doctrine. It has nothing to do with the statutory interpretation. Lee many circumstances we see charged issues. They boil for a long time. Not everybody will agree on everything. Not everybody is going to agree thatrtain social issues result in some cases from basic differences in how people view their place in the universe. One area is the area of abortion. People feel life and when it begins differently. Informed by the common sense approach to what they think the law ought to say. Disputes regarding when life begins and abortion didnt begin with roe v. Wade. Was the change federalization and the grasping of the issue. The taking it beyond the realm of political debate within the political elected lawmakers no longer in a position to be the primary drivers of policy. Decades, wet few have all kinds of questions that have been put into uncertainty. You have uncertainty by people at the state level who want to make their own decisions about certain things around abortion. They cannot prohibit it entirely. There is this undue burden standard that has to be addressed. Nobody is completely sure what that means. They work around it. There are discussions that arise regarding the qualifications for how close and Abortion Clinic needs to be to an accredited hospital. How it needs to be staffed and what the sanitation protocols are. Recently some states passing laws saying there is an abundant medical science couldg an unborn human feel and respond to pain as early as 10 or 12 weeks but certainly by 20 weeks. By 20 weeks we will adopt a different set of legal procedures as a result of that. This is a human that everybody agrees could feel and respond to pain, we have to handle that differently. Laws areimacy of those thrown into the federal courts yet again all because those were made federal issues. Clear, youe very have the impression from watching debates in one, inances like this protest outside the Supreme Court, you have the impression wade didnt exist , all of a sudden abortion would immediately become illegal in every state in america. That assumes a lot of facts. It assumes a lot of things contrary to evidence. It is simply not the case that the fate of health care in nor is it a fact to suggest the availability of an abortion, or lack thereof is contingent on anyones confirmation to the Supreme Court of the United States. The fact that we have this debate and we have become as protracted, as personal, as ugly , i suspect it is to the fact that we have taken a deed debatable matter beyond debate. People could elect individual representatives and have laws respecting and reflecting the views of their respective communities. We are a country of 330 million americans. Difficult to have those 330 million americans reflected in nine members of a Supreme Court. It is really hard to have them reflected in 100 senators and 435 representatives. That is doable, especially when most people are elected. They stand for and every few years. It doesnt happen that way in the Supreme Court of the United States. My colleagues on the other side of the auto were fear mongering on this. They were fundraising over this. That people would lose health care. That people would be dying in the streets because of the lack of availability for that procedure. Have we created a monster . Inactionhrough our own , our own sensation of authority to a nonlegislative branch, had we created the very set of untenable circumstances causing people to protest outside of a nonpolitical entity . To ask ourselves that question from time to time. Life is valuable. That is not a religious statement. It is the foundation of all of our laws. Not just in this country. Not just in countries with christian origins. In basically every country that has ever existed anywhere in the world. A purpose of government to protect life. That is what it is about. People ought to be able to have limitaid at least at some beyond when a human could feel and respond to pain, something is wrong with them. We believe these things perpetually in the hands we will leave these hands in the unelected. For the United States of america. It is not good for constitutionally limited government. It is not good for our individual liberties. Alexander hamilton had some crazy ideas. He did some crazy things. He was also brilliant. Certainhe foresaw aspects of our lives when he described the differences between the branches of federalist 78. He said the legislative branch, congress, being a political branch. A branch tuesday whose job it is to make law is best with will. When it is possessed by the Judicial Branch is not will but judgment. He went on to explain it is really important to maintain that clear distinction between will and judgment. You have the Judicial Branch serveting of people who basically for the rest of their. Ives you cannot have them exercising will. It is not their job. What do you think he meant. What is the difference between will and judgment . Will is thet imposition of policy preferences as happens in the making of law. Lawment is evaluating that for its consistency with the constitution or to give another example to interpret what that law means. It most certainly is not the imposition of policy preferences as an opportunity for an exercise of will. Sen. Lee how does she know when she has reached that point . Judge barrett it requires disciplined judicial decisionmaking. You treat it as a text. You treated as law. I will say that one practice i have, one check that i put on when i write an opinion i tried to read it from the perspective of the losing party. Any sympathy i might feel for the particular result i reached, i try to make the sympathy run the other way. Disappointed if it was my child who was sentenced. What i still think it was a well reasoned opinion . Use, i taketest i it very seriously. Sen. Lee as we have had this conversation today, one of the andments that has been made some original inists as having engaged activism, i want to be clear. The one who does not believe anything worse than an activist judge or passive judge. Pacifist. To be a to let stand an invalid, unconstitutional law as if it were valid and constitutional. It is every bit as bad to do that as to validate something as unconstitutional that is in fact not unconstitutional. Would you agree that both of those are equal instances of bad judging . Judge barrett they are equally as bad. They are not following the constitution. Lee by the same token, a judge who fails to grant the dispersion and the grant a judge who granted have probably done an equally bad thing. Is that right . Judge barrett yes. Sen. Lee does the constitution sandy thing about the facts of the Supreme Court . Judge barrett the constitution does not. That is open to congress. It has been nine for about 150 years. That is a matter of statute. Statutory, a statutory decision. Nonethelesssion that could have some bearing on constitutional issues. Correct . Judge barrett there would be more decisionmakers . If we abandoned the longstanding historical practice and tradition of having nine justices, could that have . N impact judge barrett it is hard for me to understand what specific constitutional question youre asking. Sen. Lee there are strong why over theieve last more than a century and a half we have left that number at nine. As you point out, theres nothing in the constitution that requires it. We could come up with any number we want. It doesnt specify the number of seats that could be on their. Are reasons that have to do with the respect for the separation of powers between the three branches of government. Reasons that have over the last 150 years left us to leave that number at nine. The last i could tell, if there was any serious effort to move. He bumper number above nine Franklin D Roosevelt got tired of his socalled four horsemen of the apocalypse. They were voting consistently against his agenda. Sometimes they were joined by one or more members of the Supreme Court. He got tired of this. He proposed packing the court. What i mean when i refer to this is in the number of seats on the Supreme Court. Doing so by statute with the intent of altering the composition of the court for shortterm political gain. That is what fdr wanted to do. Notwithstanding the fact that he had an overwhelming super majority in both houses of congress. The idea he pushed in the fall opposition enough even with both houses of Congress Overwhelmingly being controlled by his Political Party that it stalled, quite mercifully, and it has remained ever since then at nine justices. I think it wouldve been a colossal mistake. Joe biden himself, as a senator, gave a rousing speech that i recommend to all, talking about that very thing, acknowledging that the constitution doesnt require it, but our respect for the separation of powers really ought to lead to us sticking to the number nine. Dont pack the court. In recent days, ive seen some in the media and some in this body trying to redefine what it means to pack the court. Some have suggested Court Packing takes various forms and it can mean confirming a lot of people all at once. Some have defined it so as to suggest that it consists of doing that which the Trump Administration and the Republican Senate have been doing over the last 3 1 2 years, which is filling vacancies as they have arisen in doing so with textual list, originalist textualist, originalist judges. This is not Court Packing. Court packing is manipulative. It is something that has great danger to do immense political and constitutional harm to our system of government, in part because he could set up a oneway ratchet. Once you create a position and confirm a person to that position, that position remains in place. If, for example, a future congress and white house work to decide, to get together and to pack the court and increase the number, say, to 11, and lets say its democrats who do that, and weve got joe biden now as a president ial candidate, who is refusing to say whether he would do it. There is a reason he is not saying whether he would do it. There is only one reason you refuse to answer that question. You are wanting to be able to do it, but you dont want to take the heat for the fact you are thinking about doing it right now. So, if they do that, where does it lead . Well, it inevitably leads to the point where the next time republicans have control of both houses of congress and the white house, they would increase it as well. You would end up increasing it incrementally. Before long, it looks like the senate in star wars, where you have hundreds of people. If you increase it at all, change the number at all, you do so for partisan political , youses at all delegitimize the court. You cant delegitimize the Court Without fundamentally threatening and eroding and impairing some of our most valued liberties. You cant do that without inevitably threatening things like religious freedom, things like free speech, things that are themselves often unpopular, but are protected by the constitution precisely because they are unpopular. Respect, thehat constitution is sometimes counterdemocratic. Sometimes it could be described as fundamentally undemocratic. The whole reason to have a constitution is to protect us from the impulse of a majority that might be bent on harming the few in the name of the many. Thats why the law is so important. Thats why the position for which you are being considered is so essential. Thats why we have got to do our job to make sure that the only people who make get the job for which you have been nominated fit the bill. You, judge merrick, are judge barrett, are someone in whom i have immense confidence, immense trust, and i look forward to voting to confirm you for that very position. Thanks, senator lee. Lets come back at 12 45. We will start with senator whitehouse. We have 15 senators left. Everybody takes 30 minutes, 7 1 2 hours. We will take a break for dinner tonight sometime later on and a short break. Are you doing ok . Three hours about right . We will come back at 12 45. We are on schedule to be here until 9 00, but we will do whatever the committee wants. We are in recess until 12 45. Thats the focus of our efforts. Do you think that is distracting former senator, former Vice President , and i future President Biden is entitled to speak his mind on the issues. Most of the time, im going to agree with him. Sometimes, i wont. I thought that was very curious. I think her candor made sense to me. When you look at the