Transcripts For CSPAN Part 1 Supreme Court Nominee Amy Coney Barrett Confirmation Hearing - Day 2 20240712

Of their choice, including abortion, Voting Rights, the Affordable Care act, and religious liberty. [gavel banging] good morning, everyone. Welcome back. Judge, thank you. A good day yesterday. Your family did great. Cleanup well. You look good. The game plan for today is to do our first round of 30 minute questioning. Each senator will have 30 minutes to interact with judge barrett and then we will follow up with a second round of 20 minutes. We will not get it done today, 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 pleas about obamacare, charts of people with preexisting conditions. I want 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. From my point of 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. Want something we want Something Different you know what we want . South carolina 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 . If you had a 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 not going to sit back and quietly let you give 35 to california. Three state. Three states. The Revenue Streams are uncertain. 30 increase in premiums in South Carolina for those on obamacare. I was on obamacare for a few years. My premiums went up 300 , my coverage was almost 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 grant 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 have an 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. The debate on health care is 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 could not 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. We, on the side, do not believe obamacare is the best way to provide Quality Health care over time. 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 . It just makes them different. Bureaucrats would not be 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 act before the 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 other side 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. You said you are an originalist. Is that true . What does that mean, in english . We all love senator lee, but in english. In english, that means i interpret the constitution as a law. I interpret the text as 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 use my own policy views into it. In other words, you are bound by the people who wrote it. That keeps you from substituting your judgment for theirs . That correct . 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 i accepted the nomination his philosophy is mine. He was a very eloquent defender of originalism and that was true of textualism which is how i approach statutes. For 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 Justice Barrett and that is because not all originalists agree. Neither do text to ellis. Textualists. A friend of mine teaches a class called 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 aclu, proudly prochoice, but all of us on this 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. To President 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 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] you said in writing it was a super precedent. What did you mean . In my writing, 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 it 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 we are 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 see that happening anytime soon. I do not either. Let us talk about the heller case. What is that about . 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 binds. Court, heller 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 heller, 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, then the court rented and thesearch cert, 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 controversies 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, talk to 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 the two leading cases in america regarding abortion. People think of roe v. Wade and casey is the case after that , that upheld the central holdings, but grounded in different rationale. What is that rationale . Rationale that the state cannot impose undue burden on a woman choosing to terminate a pregnancy. Stateine, there are challenging on the abortion. There are state with Something Like the fetal heartbeat bill. I have a bill that would disallow abortion on demand after 20 weeks, the month of april. 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 provide 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. That is a theory to protect the month. At the fifth 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 violates casey. How do you decide this . It would begin in a district court, 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. Someone would have to seek the Supreme Court and then it would be the full judicial process. It would be brief, oral argument, consultation with colleagues, writing, really digging down into it. It is not just a vote. You all have a policy and you cast a vote. The judicial process different is different. When it comes to your 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 in the catholic faith . Yes. Can you set aside beliefs regarding any issue before you . I can and i have done that in my time on the seventh circuit. If i stay on the seventh circuit, i will continue to do that, and if i am confirmed to the subject court, i will continue to do so as well i daresay your personal views on the Supreme 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. If congress wanted to revisit that and somebody challenged it 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 tried to outlaw samesex marriage, would it follow the same process . It would and one thing i neglected to say before is not only would someone have to challenge that statute if they outlaw samesex marriage, there would have to be a case challenging it. 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 such a lawsuit, and it would not make its way up to the Supreme Court. If it did, it would be the same process i have described. Let us turn to senator hawleys favorite topic, substantive due process. As a legal theory, what am i talking about . Can you explain it to the country because if you cannot, i think i am in trouble . The 14th and 15th ammendment provide that the state cannot take life, liberty or process without due process of law. That like a procedural guarantee, but in Supreme Court president , it has a substantive component. There are some liberties, some right that people possess that the state cannot take away or without a good reason. The right to use birth control, the right to an abortion are examples of rights protected by substantive 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 a 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 anybody proposing to throw 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 camp that substantive due process. S a legal it makes the constitution no more certain than the people interpreting it at any time. 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 substantive due process. You thought the concept was constitutionally in error. How does precedent play in . Precedent is the principle that cases that have been decided by the court before this lands on the docket are presumptively controlling. Precedent comes from a concept of stare decisis is which is stare decisis, which is shorthand for a longer latin phrase that means stand by the decided. 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 does not end the debate. You have to look at reliance interest, whether the law or facts let us stop real 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 not describing the reliance of people on the right 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 have president of the court then overruled been overruled before . Yes. Can you give me an example . Brown v. Board of education 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 . It is not president the issue coming up for the. It turns on a doctrine called severability. The issue before the court was sebelius, correct . That was the first, about the constitutionality of the mandate. Has zeroed out what they called the tax and the real issue is canopy severable . Cat congress has zeroed it out, can it be 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 . A lot smarter people than me suggests severability 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. There is a statute that governs when judges and justices have to recuse. There is precedent under that rule. Justice ginsburg said it is up to the individual justice, but it always involves consultation with colleagues. That is not a question i could answer in the abstract. So if you are appointed by obama, that is no reason to recuse yourself. 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 . Well, senator, i have tried 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, in my personal life, to impose my choices on them. The same is true professionally. I apply the law and senator, i think i should 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 that 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. I am not the only person who could do this job, but i was asked. It would be difficult for anyone. Elsehould i say someone 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, but good news for you. We have all chosen crazy stuff to do. I am glad you said yes. I am glad President Trump shows chose 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 clearly 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 woman 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 their capabilities in the law, it is you. Got bless you. Judge barrett thank you, chairman. Senator feinstein. Mr. Chairman, judge, it is wonderful to see you also with the family i have been observing. They sit still, quiet, youve done a good job. Judge barrett i have eyes in the back of my head. [laughter] i am wondering if you might introduce us to them. Judge barrett sure. My husband jesse, my son jp, my daughter emma, juliet, vivian, and my son liam. Behind them are my six siblings. Behind vivian is my sister vivian, eileen, michael, my 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. Judge barrett improv. [laughter] yes. Let me begin with a question the 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 women try to hurt themselves and it was deeply, deeply concerning. During your confirmation hearing before this committee in 1993 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. In planned parenthood of southeastern pennsylvania v. Casey, Justice Scalia joined the dissent which took the position and i quote, we believe that roe was wrongly decided and it should be overruled consistent with our traditional approach to stare decisis in constitutional cases. Do you agree that it was wrongly decided . Judge barrett i do want to be forthright and answer every question. On that question, im going to invoke Justice Kagans description which i think is perfectly put. She said, she was not going to grade accident or give it a grade 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. On something that is a major cause with major effects on over half of the population of this country who are women, it is distressing not to get a straight answer. Let me try again. Do you agree with Justice Scalias view that it was wrongly decided . Judge barrett senator, i completely understand why you are asking the question, but again, i cannot recommit or say im going 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. Show less text well, as a person 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 . Judge barrett 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 views on cases or precommit to approaching a particular way. That makes it difficult for me and other women also on this committee because this is a very important case effects millions 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. The question comes what happens . Will this justice support a law that has substantial precedent now . Would you commit yourself on whether you would or would not . Judge barrett 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. There has been a surge in gun 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. Americans bought 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 blocked 23,692 sales. More than double the sales 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 . Judge barrett senator, the 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, heller leaves room for gun regulation. Heller does not make the right absolute. Let me ask one more question. In a recent dissenting opinion that you wrote you said there was no question that keeping 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 . Judge barrett let us see. I cannot remember precisely the words of cantor in which the 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, those who would be likely to misuse guns. Where does that leave you . On roe. The chairman 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. Judge barrett what i can say is that my opinion and cantor shows my 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. As jimmy explains, with 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. Fortunately, a few days later, 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 . Judge barrett senator, so far as i know the 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 . Judge barrett 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. If there were policy differences 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. In what way did the chief justice go beyond the acas plausible meaning . Judge barrett i have written about this and 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 phrase as including exchanges was not the most natural reading. But for other policy reasons, they chose to adopt the less natural reading. You see, for me, the case coming up, california v. Texas, puts a whole new light on your nomination. The Affordable Care act is now being so well accepted i represent the largest date as do 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 . Judge barrett 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. Judge barrett well, let us see. What i said, which you quoted, 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 . Judge barrett it is a case that is on the court docket and the canons of judicial conduct would prohibit me from expressing a view. Ok. Ok. I will move on. On july 30, 2020 President Trump 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. In 2017, in a case called eeoc 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 deny a rehearing and let the opinion stand. Is that correct . Judge barrett 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 Court, does not take cases just 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. It is like a vote not to deny a vote on the merits. It was not an equal protection case. Let me ask you a question as a person. Judge barrett 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 race to violate brown be the 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 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 . Judge barrett as a person i have a general belief racism is abhorrent. It is what . Judge barrett 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 . Judge barrett well, i am not aware of cases presenting the exact same facts i am asking you for your view. Judge barrett 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. The 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 one couple who i met in the 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. In june of 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. In 2013, as you would know, us v. Windsor the Supreme Court struck it down. They then recognized that this right 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 . Senator 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. I will not agree or disagree just for the same reason i have been giving. Justice ginsburg used this to describe how i now many should comport herself at a hearing. No hints, no 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 answer these questions directly, but you identify yourself with a justice 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. Judge barrett senator, i have no agenda and 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. On the question of law, however, 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. Thank you, chairman. 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 Young Students 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 you so that you will carry their policies forward, meaning 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. We want judges 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 arretts 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. Not only is judge barrett a 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 technical concerns about roberts 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 socalled tax, 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 commented on how she would vote, 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 consider a Court Reasoning even when they have no disagreement with the outcome of the case. For instance, the New York Times recently reported ginsburg, before joining the Supreme Court, wasnt really fond of roe v. Wade. She did not like how it was structured. I do not know why democrats have a different standard for you, 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. The truth is judge barrett already said a judge must apply the law as written, and further commented to decide cases according to the rule of law, beginning end to end bash beginning to beginning to end. Now to my first question when 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. Let me ask my question. Judge, you probably know how important it is. I want to know how important legislative history is to you, 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. Judge barrett sure. I am very comfortable talking about the use of legislative history because it is a matter of interpretive philosophy. What governs the court is the 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 were saying things the 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 history, 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. I would like to go to a specific case i 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. The First Step Act accomplished these goals through presenting and sentencing reform. It was well known that the first of acts goal was to make smart 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 on. President trump signed the First Step Act into law only two years ago, so wouldnt rereferencing 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 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. On my next question, you might have just partially answered it. Let me go ahead with my lead in and also a question. 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. Note, i agree with you that the law needs to be read and interpreted literally. So my question is this how could we come to different conclusions . Judge barrett well, that 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 sentences, and one could say it 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. But, whenever you draw a line on 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 this a little already, but i think it deserves emphasis because you will go through a lot of this business of, maybe 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 judicial process. Obviously we 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 the very 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 their future votes on the bench. You would be showing the opposite of independence. So, my question 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. 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. 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. Senator graham 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 . I think i am. Can you hear me there . We can. You on the screen. The floor is yours. Thank you 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 for 50 years and our children and our grandchildren are the most important things in our life and 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. Let me talk about some of the things i have been hearing from vermonters. You have to 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. 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. 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. It is a little more than 15 million. I look at that because i look at the people from vermont i think of alex johnson, a single mother. Childhood cancer survivor. She works as a nanny in vermont. She relies on medicaid for doctors visits, other testing. That makes sure her leukemia stays in remission. She tells me she stays awake at night, worried about losing medicaid. Arehe republicans successful in what they are trying to do on november 10, alex and 600,000 other vermonters enrolled in Medicaid Expansion are going to be left behind. A preexisting condition. You know how many million americans have tested positive for the coronavirus and survived . Judge barrett i do not. More than 7 million. Have are people who now preexisting condition. Commonthe most preexisting conditions is diabetes. The cdc estimates that 34 million americans, one in 10 americans, have diabetes. Expansion is the single most important factor for expanding access to affordable insulin. For years, she depended on medicaid to keep her alive and out of bankruptcy. [inaudible]ump i wish he had told the truth. We all know its not. Leslie now has insurance to pay for insulin. Without this insurance, do you know how much unlike what the president says, insulin is not as cheap as water. Do you have an idea how much her outofpocket expenses would increase . Judge barrett no. I do not. Wouldnt expect you to. Theres no reason that you should. Leslies costs would more than 11,200and go up by dollars per year. Is per capita income 33,000. Suggesting that you are callous or indifferent to the consequences if the Affordable Care act was overturned. You know these are real cases. I think you are a sympathetic person. I do believe that the president instructed you because he wanted somebody and he had a reason for it. Some are going to pretend that its a mystery, as some of my colleagues have. As Justice Barrett would do. President trump has made it crystal clear, he has promised that he would overturn the aca. Its even in the rift official Republican Party platform. He said, we want to terminate health care under obama care, the aca. You,n hours of nominating he repeated his hope that the aca will be overturned. I mentioned senator graham. He knows the president s policy better than anyone here. He goes golfing with him. He spends a lot of time with him. Graham knowsman 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 is confident that judge barrett woodside with him. Thats not necessarily a question for either one of you. Of course, the chairman has an opportunity to respond if he wants. President is confident. It has not been an issue in the last decade [inaudible] i was surprised at the answers. Do you know that republicans in congress have voted to repeal the aca more than 70 times . Failed, they turned to the court. Do you know how Many Republicans tothis committee have joined urge courts to overturn the aca . How manyrett republicans voted . Was not the question . Do you know how Many Republicans in this committee have joined an amicus brief urging the courts to overturn the aca . Judge barrett i dont. Im having trouble hearing. Is there a way for the volume to be turned up . Yes, maam. Um. Im sorry for that. It is on our end. Thats ok. Repeat the question. Hows it coming through now . Very good. Judge barrett very well, thank you. Know, i dont think it is safe for you or anybody else to be there. , do you know how many times republicans on the committee you are sitting before have joined amicus briefs urging courts overturn the Affordable Care act . Judge barrett i do not, no. Its at least nine, by my count. They have already weighed in on the november 10 case. Two weeks ago, the senate voted on whether to side with President Trump in texas versus california. 11 of the 12 senators on this committee cited with the Trump Administration and asked to kill the aca. Not stand that you are you will not share your views on texas versus california. Concerned that it may give future litigants that appear before you an indication of which way you would rule. Is that correct . Sen kennedy yes judge barrett yes. That is correct. Ok. Um, my concern 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. The recusal statute requires mightl where impartiality 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. I have had no conversations with 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 the judiciary for anyone to put a justice on the court as a means of obtaining a particular result. And that is why, as i was mentioning, i think to senator questionnaire the that i fill out for this committee, makes clear that i have made no precommitments to anyone on how i would decide a case. 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 a similar answer when i talked with you. I had a question, of course, because one of the members of the judiciary Committee Said he would not support you unless you unless he had a commitment that you would vote that way. Judge barrett on the election . Leahy 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 . Lady, rett senator ator lady senator o3qy , i have made no commitment to anyone, not in the senate, not over at the white house, on how i would decide any case. Sen. Leahy the reason i ask is we also have the question of appearance. Now, judge joan lawson of the 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. Judge larson 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 were also on the short list then, and you were actually chosen. Now he is not the president elect. He is the president. And when the president makes a similar claim as he did when judge larson looked at it, he is counting on you to deliver him the election. Judge larson said that was a conflict for her and would have , to recuse. [inaudible] judge barrett i am not familiar with judge larsens decision, but she clearly made it once it was presented to her in the context of an actual case where she had to weigh out her obligations. If presented to me, i would, like judge larsen, apply that statute, and i 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 precedents, 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. Sen. Leahy well, i think what i worry about, and what i have said over and over again, is if the courts are politicized, from the Supreme Court down to other courts, and i have argued cases in federal courts 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, that meant that the democrats had 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 might 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 type of 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. And i voted for an awful lot of republican and democraticnominated justices, 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 declares he needs his nominee as a way of securing his reelection, and that nominee is then rammed through the senate in the middle of that election, you could see where the nominees impartiality might be questioned. My 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 president ial election . Judge barrett senator leahy, i 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 recusal or 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. So let me ask you another question. You laid out the case for obamas president Supreme Court nominee, judge merrick garland, during an election year. Justice scalia was the staunchest conservative on the court, and Justice Scalia and i were personal friends and i voted for him and i agree with you on that. You claimed that nominating the eminentlyqualified judge garland would shift the balance of the court, and you said it was not a lateral move. That was your quote. So now you are nominated to , replace Justice Ginsburg, perhaps the staunchest champion of civil rights on the court. You claim the philosophy of Justice Scalia is yours, and he was on the opposite side of Justice Ginsburg in countless civil rights cases. Would you say that replacing Justice Ginsburg by yourself is like youeral move, said when you said 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 supported their decisions. And i said, while 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. Way theynt say which should go, i simply said it was the senates call. I did not advocate or publicly for judgee blockade 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 that nomination, because it would change the balance of the court. Sen. Leahy i was surprised there was resistance, and there were so many, at that time, so Many 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, somebody 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. Are they right say 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 marriage garland said to the vacancy who merit garland 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 nominee confirmed by one party 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. Let me go to another area. A threejudge panel of the seventh circuit struck down three provisions of an indiana law restricting reproductive rights, stating indiana requesting an en banc review of just one of the provisions. The petition provision. Of course, whether to review the case, or leaving intact the Panel Decision to strike down the law, you joined the justice in dissent. But then the dissenter went out of his way to address a second ,rovision not before the court called the eugenics statute. Judge barrett, the issue before your court was a narrow one, limit your dissent on one issue the state of indiana was asking you to review. Judge barrett we dissenters, first of all dissented on the , fetal remains disposition portion, which the Supreme Court wound up summarily reversing the panel. 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 actually thought it was an open question, but one best left to the Supreme Court, and we did not reach any conclusion with respect to it. Sen. Leahy whatever position you took would not have changed the final decision of the court. Now, in 2006 you signed an open letter that was published in , and onh bend tribune one side, the advertisement described the legacy of roe v. Wade, and on the other side you wrote that you oppose abortion. Because of the right to life and fertilization it natural death. And i have certainly voted for some judges who take that position, but what was not mentioned in the letter, that the organization that led the effort believes that in vitro fertilization or ivf is equivalent to manslaughter and , should be prosecuted. Do you agree with them that ivf is tantamount to manslaughter . Judge barrett senator, the statement that i signed, as you we iy said signed it 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 that sponsored the ad that ivf is tantamount to manslaughter . Judge barrett well, senator, i signed the statement that you and i have just discussed. And you 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. But 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 Defending freedom, adf for five , lectures. Himgave one on original is at the blackstone. Now, i recall being asked about some of their controversies. Were you aware of adfs decadeslong efforts to recriminalize 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. A brief they had filed in lawrence versus texas supporting in support of state laws punishing private homosexual activity, they celebrated when india passed a years. Uiring 10 and whether you believe being gay is right or wrong is irrelevant to me, but my concern is you worked with an organization working to criminalize people for loving a person that they are in love with. So that is what worried me. Judge barrett i wasnt sure if you wanted me to answer that. Sen. Leahy go ahead. Judge barrett my experience with the Blackstone Program at which i spoke was a wonderful one. It gathers the best and brightest christian law students from around the country. And as you said, i gave a onehour lecture on original is him. Lecture on originalism. 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 experiences with anyone in the Blackstone Program work ever indicative of any kind of discrimination 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. Do you feel that should be a crime . Judge barrett samesex marriage . Sen. Leahy yes. Ge barrett oberg felt obergfeld says there is a constitutional right to samesex marriage. Sen. Leahy and you agree with that . Judge barrett because of the reasons i have said, as Justice Kagan said, i am not going to give a thumbs up or a thumbs down to any precedent. It is precedent of the Supreme Court that gives samesex couples the right to marry. Sen. Leahy justin kagan once wrote an opinion that said it is not enough that they believe the not enough justices believe that they president that a precedent is wrong, that it needs some special justification. Do you agree with that . Judge barrett i do agree with that. The doctrine itself requires that. Leahy 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 appreciate it, 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 leahy mentioned my time with the president. I think, well 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 golf course, some policy. Killing solemani, we talked about that. That was an interesting question. I promise you, 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 and notes and books in front of us. Can you hold up what you were referring to in 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 objections to your nomination are not to your qualifications, your experience or training, but it is that you have, or you will violate your oath of office. I find that terribly insulting. They suggest that you cannot be unbiased in deciding a case you havent even participated in yet. I find that insulting as well. Now, maybe almost as pernicious as attacking somebody for their faith and suggesting that that disqualifies them from holding a Public Office is the attack on Judicial 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. You know, there are a lot of how judgesguessed would actually rule on cases, and almost always they have been spectacularly wrong. I was 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 Wendell holmes junior, he said, i could carve out of a banana a judge with more backbone than that. And 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 attacks on neil gorsuch for his unwillingness to make a prior commitment on lgbt issues. He wrote the bostok case extending title vii of the Civil Rights Act for gay and transgender individuals. Obviously those predictions were , 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. So i would just say all of these predictions about how judges, under our independent judiciary justl make decisions, are pierced speculation. But i think they are worse than speculation. I think they are propaganda, in order to try to make a political point. So judge, you are not willing to make a deal. Judge barrett no, senator cornyn, i am not willing to make a deal, not with the president , not with the committee, not with the president , not with anyone. I am independent. Sen. Cornyn i would just like to hear, maybe, some of your casehts on the overfilled feldhoughts on the oberg case, which established, as you said, constitutional right to samesex marriage, part of that decision 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 it, pat leahy voted for it, 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 courts as do 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. Because courts are not expressing a policy preference. They are digging in, looking at the precedent, they are looking at the constitution, and even when the result cuts against policy preferences, judges are expected to follow them. I suspect this body doesnt cast votes that conflict with their policy preferences. Thats right. And the difference between us and you is you dont run for election. Judge barrett that is right. Sen. Cornyn you dont run on a platform. You dont say if i am confirmed, i will do this or that you dont do that, do you . Judge barrett it would be holy, loudly inappropriate for me to do so. Sen. Cornyn , your mentor, Justice Scalia said Something Back in 2005 that i find intriguing, but reassuring. He said if you are going to be a good and faithful judge, you have to resign yourself to the fact that you are not always going to like the conclusions you reach. If you like them all the time, you are probably doing something wrong. Do you agree with that, and if you do, would you explain what you mean . Judge barrett i do agree with that, and that has been my expanse on the seventh circuit so far. It is your job to pass the statutes. It is your job to choose policy. And then it is my job to , interpret those laws and apply the facts in particular cases. And they dont always lead me to results that i would reach if i were queen of the world and say, you win or you lose, and that is how i want it to be. Because i do not have the power by fiat to impose my policy preferences or choose the results i prefer. That is not my role. I have to go with what you guys have chosen. Sen. Cornyn well, why in the world would the American People surrender their right to govern themselves through their elected representatives and through the constitution . And nine people who dont run for election and serve for life. Why would the American People do that . Judge barrett part of the rationale for courts adhering to 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 a world with the law 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 , and you cante kick me out if you dont like them. Sen. Cornyn thankfully under the constitution, even if the Supreme Court strikes down a backte, congress can come and revisit that topic, and do so in a way that does not violate the constitution as determined by the court. Ultimately, it does not happen very often in our history, but 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 agree with that. Sen. Cornyn not what nine people in black robes, the high nine on the potomac, i think sometimes they are called, the decisions they make, that is not the final word in our form of government, correct . Judge barrett we are a government of laws, not of men. Sen. Cornyn im almost through , but i cant 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 of texas to argue before the Supreme Court. I argued in a case called santa fay Santa Fe Independent School district versus doe. This was about a commonplace practice before Football Games in texas students would , volunteer to offer an invocation or inspirational poem or saying or Something Like that. The aclu sued the school district. And obviously, it made its way to the Supreme Court. And im not going to ask your opinion on the outcome of the case. But what troubled me the most about that experience is when , the Supreme Court struck down or hell that practice unconstitutional and in violation of the establishment clause, the chief justice said the constitution requires neutrality toward the constitution, but the courts approach speaks of hostility toward religion. Could you just talk a little bit about the establishment clause generally not in regard to any , particular set of facts, but sort of what the courts over time have tried to do to enforce the mandate of the constitution. Cornyn,rrett senator when i interviewed for my job with Justice Scalia, he asked what area of the courts precedent i thought needed to be better organized. That sort of thing. And offthecuff i said the First Amendment. And he said, what do you mean . And i fell down a rabbit hole of trying to explain without success, because it is a very outlicated area of the law, one might see ones way to balance the free exercise clause with the establishment clause. It is a notoriously difficult area of the law. And to the extent that there is tension in the court cases, and im giving you know better answer than i gave to Justice Scalia that day, it is something the court have struggled with for decades to come to 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. Chairman graham for planning purposes if it is ok with the , committee, i will have senator durbin, we will break for about half an hour for lunch. And we will come back with senator whitehouse. Is that ok . Do need a break . Judge barrett that is fine. You, judgebin thank barrett, and thank you to your family for being with us today for this marathon questioning. Who came up with this notion, 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 Supreme Court nominee to do politically for him . That is where it comes from. That is where it originated. And you have said very clearly today, without equivocation, you are not going to be influenced by President Trumps importuning or the importuning of this , committee or anyone else. Which is what we expect you to say. But this notion that this whole idea that you are being used for political purposes is a democratic creation. Read the tweets. And you have plenty to work with. Read the tweets. The second thing i would like to say is, im not going to spend a lot of time defending the Affordable Care act, although i think it is the most important single book i have cast as a member of congress, period. But i will say that when the chairman opened up and said what he did, i was puzzled. Three states get 35 of the money . How can that possibly be true . It turns out, because those states decided to extend medicaid coverage to people who live in the states and his did , not. And as a consequence, fewer people in South Carolina have the protection of health insurance. And those that do are paying for their services. And those that dont are not. Which imperils hospitals and others in the process. So i would say there is an explanation as to why some states are spending more. And incidentally, there was a republican governor of your state, indiana, by the name of mike pence, who decided to break with other republican governors and extend coverage under the Affordable Care act. I think it was the right thing to do for indiana as it was for , illinois. But that is part of the reason. The Affordable Care act is at the heart of this from the democratic side. We believe the Supreme Court of that case could literally change america for millions of people. I have with me today another group i would like you to be aware of, because they are Pretty Amazing people. But this is the williams family. They live in naperville, not far from chicago. They have four sons from left to right matt, joey, tommy, and , mikey. Matt, who is was diagnosed with 27, type 1 diabetes when he was 13. The other three williams boys were all born with Cystic Fibrosis. Joey is 24, mikey is 21. Sadly mikeys twin tommy passed , away after this picture was taken, in january of from 2019, complications. This is the last photo that was ever taken of their full family. Heres what they wrote me. We cannot imagine losing another child. People with Cystic Fibrosis require daily medication, doctor visits, special care. That means people with preexisting conditions like Cystic Fibrosis cannot be discriminated against. The aca protections ensure a ban on annual lifetime caps and a forced requirement of Mental Services and hospitalizations. 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. Real people that we run into all the time. There is a chart here. I want to show it to you. On the republican side, there is some obvious controversy as to whether we are right or wrong. But there but there are an awful lot of people in each of the state represented by that have senators their health care and sometimes there lives hanging in the balance. In South Carolina, thousands of 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. You have been unequivocal in being critical of the decisions both in sibelius and burwell. And naturally, we draw the conclusion that there is going to 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, on the severability question. So give us the insight of how you could be so unequivocal in opposing the majority decisions of burwell,and king but have an open mind when it comes to the Affordable Care act . Judge barrett thank you for that question, senator durbin, because it gives me an opportunity to make my position clear. Wrote, and this was as a law professor about those , decisions, i did critique the statutory interpretation of the majority opinions. Before, myid description of them was consistent with the way chief Justice Roberts described the statutory question. But i think your concern is that because i critique the statutory reasoning that i am hostile , towards the aca. And that because im hostile to the aca that i would decide a , case a particular way. And i assure you that i am not i , am not hostile to the aca. Im not hostile to any statute that you pass. And the cases in which i commented, and we can talk at another time, i guess, about the context and the distinctions between academic writing and judicial decisionmaking, but those were entirely different issues. So to say that because i critique the interpretation of the mandate or the phrase established by a state means that there is an entirely different legal question of severability, i would reach a particular result, to assume that that is not the case. Im hostile that is not the case. , i apply the law you make the , policies. Sen. Durbin lets talk about that from a different perspective. Bear with me for a couple of questions. 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 , very personal for my family. Jesse was with the boys on a camping trip trip in south dakota. So i was there, and my 17yearold daughter who is adopted from hate to come all this was a rub thing. It was very difficult for her. We wept together in my room. And it was also difficult for my daughter julia, who is i had to 10. Explain this to them. I mean my children to this point , have had the benefit of growing up in a cocoon where they have not experienced hatred or violence. And for vivian, to understand that there would be a risk to her brother, or the sons she might have one day, that kind of brutality has been an ongoing conversation. It is a difficult one for us, like it is for americans all over the country. Sen. Durbin i would like to ask you, as an originalist to obviously has a passion for history, i cant imagine you could separate the two, to reflect on the history of this country. Where are we today when it comes to the issue of race . Some argue it is fine. Fine, and you dont even have to teach children about the history of slavery and discrimination. Others say there is an implicit bias it so many aspects of American Life that we have to be very candid about it and address. Others go further and say it is systemic racism, it is built into america and we have to be must more pointed in our addressing it. How do you feel . Judge barrett i think it is and entirely uncontroversial and that westatement, given just talked about the george floyd video, that racism persists in our country. As to putting my finger on the nature of the problem, whether , as you say it is outright or , systemic racism, or how to tackle the issue of making it better, those things are policy questions. They are hotlycontested policy questions that have been in the news and discussed all summer. So as i did share my personal experience, very happy to discuss the reaction of the family to the george floyd video giving broader statements and , making broader diagnosis about is kind of of racism beyond what i am capable of doing as a judge. Sen. Durbin i would doubt that. I just dont believe you could be as passionate about originalism and the history behind language we have had for decades, if not centuries, without having some thought on where we stand today. I am not going to press you on that. I am going to take you on a case that i have read and reread, candace versus barr. You know the case well. It has already been referred to. And it clearly was a case you have had your day in court. You wrote the sole descendent of the 64page case, you wrote 37 pages of dissent. So you get the court, i assume a , pretty full accounting of your thoughts on the subject. And heres how i understand the case. Ricky cantor from wisconsin invented some pads to put into a shoe, to be sold to particularly Older Americans under medicare to relieve foot pain. ,and he designed them and submitted them to medicare, and didnt get the approval he was looking for. But instead, sold them and represented to many customers that they had been approved by medicare. So he was charged with fraud. Casualsnt a matter of a misapplication of law. When it was all said and done, wisconsin ended up spending over a year, a year and a day, in federal prison paying somewhere near 300,000 , in penalties and fines and 27 million in a civil settlement on this issue. So this was not a casual wrongdoing, this man was a swindler and he was taking the federal government for a ride, as well as other customers and , misleading Senior Citizens on his product. And he paid a heavy price for it. Then he decided, having left prism having left prison, that it was fun to live mentally then he decided, having left prison, that 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. I have no idea. But he went to court and said, this is unfair, it was just mail fraud and you are taking away my Second Amendment rights. So 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, and went deep into history the isarliest citation i see 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. Am i stating the facts close to what you remember . Judge barrett i dont remember the amount of the loss and some of those details, but yes ricky , cantor was convicted of selling fraudulent shoe inserts. It was a felony. A 27 millionn settlement along the way. A 27 million settlement along the way. I would like to get to your thinking on this. Justice scalia expressly said im not taking away the authority to impose limitations based on felonies. Not violent felonies, but mental illness. He said as much in the heller decision. And yet this man who was your , inspiration, you told us he wrong, and it had to be a violent felony. Could you tell us why . Judge barrett in my court precedent, and there is precedent saying that that phrase does not control, as my colleague Frank Easterbrook has said that judicial opinions are statutes and should not be read , as if they were. It wasnt about the scope of the right. It has an application to felons. So that passage was picked up. It did not fully dive down into it. But what i did was apply bothrs methodology, Justice Scalias majority opinion and Justice Scalia and the other justices dissent, used originalist methodology to answer that question. And i concluded that based on that history, one couldnt take the right away simply because one was a felon. There had to be a showing of dangerousness. But i didnt rule out that they that the government could make that showing about ricky cantor. But i think we all luck to be careful in saying that because somebody is a felon, they lose all their individual rights. Sen. Durbin i want to stick with this for a moment more. Im honored to represent the city of chicago and the state of illinois. It is a great city, but it has great problems, and one of them is gun violence. On average we know in america, 100 americans are killed every day by gunfire. 40,000 per year. In the city of chicago, more than 3200 people have been shot just this year. 3200. According to cities gun trace reporting in 2017 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. A 2017 report found indiana loan indiana alone was the source of 21 of all of chicagos recovered crime guns. We know how it works where you live. You know how it works. There is traffic between chicago, indiana, and michigan going on constantly. Gun shows are held in gary, indiana, and other places, and went they sell these firearms without background checks, unfortunately, gang bangers and fill up their cars with firearms 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 at these gun shows, with limited success. And we are trying to apply the standards that if you disqualify yourselfou disqualify from buying firearms with felonies and mental illness. You want to take away part of that protection with your decision in this case. Because 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 gang members and thugs buying guns in indiana and taking them across the border. And certainly, if they had felony convictions for doing the kinds of things members of gangs and thugs do, nothing in cantor says the government can deprive them of firearms. Nothing says in my opinion they cant deprive ricky cantor of having firearms. They just have to make the showing of dangerousness before they did so. And nothing at all behind the legality of background checks or gun licensing. Sen. Durbin the majority zeros those are all separate issues. Says, what you just said is impractical, that we are going to go casebycase on what kind of felonies and what kind of person. And they go on to produce then evidence. ,and you know it will because you wrote the dissent, where the likelihood of committing a violent felony after being convicted of a felony is pretty dramatic. And they are saying to us, dont make dont force us to make it casebycase, we want it to be by category, it is the only way to be dealing with thousands if not millions of people buying firearms. You want those who are socalled nonviolent felons, felons like ricky cantor, to have a propensity to commit violent felonies in the future, are you not . Judge barrett there was no evidence of that in the case. Is armed career criminal act a federal statute and there has to be judgments categorically all the time about what describes the violence. I dont think that is beyond the courts in any areas that identify which felonies are violent and which felonies are not. Sen. Durbin lets go to page 21 of the opinion, and what the majority of the court said. They quoted yancey. Comefelons are nonviolent up with someone with a felony conviction on the record is more likely than a nonfelon to engage in illegal and violent gun use. Nearly 3000 nonviolent offenders, one in five rearrested in three years. So the evidence is there for the court to consider. And you ignored it. Judge barrett i did not ignore it. As i recall, that evidence in the studies were unclear. Lets see. I cant remember as i am sitting here the details of all of the statistics. But i did consider it i recall , saying something in the opinion about the reliability of those studies. Because they didnt say whether someone had been convicted of a nonViolent Crime, but had later been convicted felonies cover a of a Violent Crime as well. Including of things, selling pigs without a license in some states, having too many bottle caps in michigan, so felonies now cover a broad swath of conduct not all of which is , indicative that someone is likely to be misusing a firearm. Sen. Durbin i would like to take you back in history for a and note that when that Second Amendment was written and you were doing your analysis of it we were talking about the , likelihood that the person could purchase a muzzleloading musket. We are now talking about virtual military weapons that could kill hundreds of innocent people. It is a much different circumstance. An originalist pins all that thinking to that musket. I have to bring it to the 21st but century. The 21st century has people andthe 21st century has people being killed in the streets of chicago because of the proliferation of firearms. Let me bring you closer to home butlet me bring you closer to home and tie up the george floyd question with where i am headed. Theres also a question of whether the commission of a felony disqualifies you from voting in america. And the history on that is pretty clear. The american found manysociology voting bans were passed in the 1860s and 1870s with the implementation of 15th amendment when the Voting Rights of africanamericans were ardently contested. It goes on today with Voter Suppression. We know in reconstruction in the era, that was used, a felony was used to disqualify africanamericans from voting in the south and many other places. The simpson project has found today that more than 6 million americans cant vote because of a felony conviction and one out , of every 13 black americans have lost their Voting Rights. The reason i mentioned that is because in your dissent you said , disqualifying a person from voting because of a felony is ok. But when it comes to the possession of firearms, wait a minute, we are talking about the individual rights of the Second Amendment. What we are talking about invoking is a civic right, a humidity a human right, however you find it. So i dont get it. Youre saying a felony should not disqualify ricky from buying an ak47. But using a felony conviction in someones past to deny them to the deny them the right to vote is all right . Judge barrett what i said was that the constitution contemplates states have the freedom to deprive felons of the right to vote. It is expressed in the constitutional text. But i expressed no view on whether that was a good idea or whether states should do that. And i did not explore in that opinion, because it was irrelevant, what limits there might be, if any, a states ability to curtail felon voting. Sen. Durbin could you not distinguish the Second Amendment right to vote, calling one individual right under the constitution, and the other a , civic right . Judge barrett that is consistent with the language in the historical context, the way the brief described it, and it was part of the dispute in heller on whether the Second Amendment was an individual right or a civic one that was possessed collectively for the sake of the common good. And everyone was freaking voting is one of the civic rights. Sen. Durbin i will tell you the conclusion is hard to swallow. The notion that mr. Cantor , after all he did, should not even be slowed down when he is on his way to buy a firearm. My goodness, its just a felony, not a violent felony he committed. And then, took turnaround on the other hand and when it comes to say, well when it comes to, taking away a persons right to vote, that is a civic duty and that is something we can countenance. That goes back to the original george floyd question. That was the thinking in the 19th century that resulted in Voter Suppression and taking away the right to vote from millions of africanamericans across this country. And it still continues to this day. I just dont see it. I think the right to vote should be given at least as much respect as any Second Amendment right. Do you . Judge barrett the Supreme Court has repeatedly said that voting is a fundamental right. I fear that you might be taking my statement in canto i express no view about what the 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. 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. That brings me to my conclusion. We dontver and over, want activist judges. We want judges who will go back to the original document and take it word for word, dont get in the way of making laws. We make the laws, you are a judge. Yet when we look at this case, the notion of what disqualifies you was being rewritten by the dissenting judge. When we say felony, we mean violent felony. You found reference to it. Its not the only time this is happened. Candences united, republic justices unleashed a flood of dope money into our political system. Part of that flood is paying for the ad campaign promoting your nomination for the Supreme Court. I know you said you had gone radio silent. I do the same thing. Ive seen them. They are beautiful, expensive ads boosting your nomination for the Supreme Court from organizations weve never heard of, spending millions of dollars to make sure you get on the Supreme Court. Citizens united opened the door for that. In shelby county, justices gutted the Voting Rights act to unleash a wave of Voter Suppression, going back to the george floyd moment. A lot of it is for racial purposes. This is an example i have given of activist judges rewriting the law, abolishing the law. People have to get real. I dont think you put the facts of the law here and nine justices come to the same conclusion. People see things differently. Based on their backgrounds, their values, their experience. I think it is simplistic to think this is a robotic performance. That simple. I think youve acknowledged that by seeing even originalists disagree with each other. Is that true . Judge barrett law is complicated. People who oppose it from different perspectives will sometimes find different results. I think that is hard to deny. Every vote from the Supreme Court isnt unanimous. Sometimes, it is. Cases dont get to the Supreme Court unless the circuits disagree among themselves. Its hard. To the extent that you are suggesting i had some sort of agenda on felon Voting Rights or guns or campaign or anything else, i can assure you that i do not. I did not say that. I wouldnt say that. I will say that you come, if you are successful in this pursuit, you come to the Supreme Court with life experiences. You come to the Supreme Court having read a lot, im sure. And drawn some conclusions in your own mind about certain things and issues. Everyone on the court has that same background. They bring something to it. Its not generic. Its individual. That is the point im making. Theres individualism to this. Just will not always vote the same. Merely saying original is him does not absolve you or us from observing the obvious. There will be differences. Would you like to Say Something . Judge barrett no. Thats ok. Thank you very much. We will go to senator lee and then we will take a 30 minute lunch break. Thank you. I have two letters for the record that i would like to have admitted. Without objections. I would encourage all of my colleagues to read them. They provide great insight into judge barretts immense wealth occasions. Qualifications. Moments ago, we went through a rather interesting set of exchanges. One of my colleagues i hope i misunderstood him. He seems to have suggested that a political talking point for you to decline to indicate how you would rule on a particular case or type of case. To the extent that thats what any colleague has suggested, i remind that colleague it is wildlyincorrect,. Ncorrect it is imperative that you uphold those standards. I applaud you for doing so. On no planet is it appropriate for anybody to suggest that that is a political talking point, for you to say i wont indicate how i will rule any particular case. Justice ginsburg did in fact say it well. Some of this has been quoted today. I will quoted again for good measure. Judges in our system are bound to decide concrete cases, not abstract issues. A george judge can offer no hints for that would show not only disregard for the specifics of a particular case, it would display disdain for the entire judicial process. Similarly, because you are considering my capacity, for independent judging. My personal views on how i would vote on a publicly debated issue were i in your shoes, were i a legislator, are not what you will be closely examining. Thats what she said. She said it well. It was true in 1993. It remains true today. Next to a line of questioning that you just completed. I have read the cantor case. I am thrilled that weve got a jurist who is willing, when looking at somebody whose Constitutional Rights are about to be taken away, thrilled to have a jurist who is willing to consider a predeprivation review for that individual. To considerl someones Constitutional Rights on an individualized basis both for having a right removed . Judge barrett that would be very unusual. It would be very unusual and unwise, would it not . Judge barrett um, what i could say to that, i should be careful about how much law im analyzing. The 14th amendment due process clause guarantees due process before liberty is taken away. I also appreciated the thorough analysis you undertook, rights inar that our this area dont just date back a few decades. They dont just date back to the 60s. They dont just date back to the 1780s or the 1760s. They date back to the 16 60s. They go way, way back. Theres a lot of history that went into what became the Second Amendment. There were conflicts that involved not just partisan conflicts, but conflict between the king and subjects. Not just between the king and sub sex subjects in the abstract. It was catholics and protestants. There was a lot of violence that went into that and lead to our adoption of that amendment. I appreciate your historical analysis of this. Your willingness to be thorough, to make sure that when someone comes constitutionally protected rights come into account, you will do your homework even if it is hard. You will do it even if you have colleagues who are not willing to do their go there. Judicial leadership involves willingness to stand alone. Thingserrick, one of the that came out to me as i read your opinion in the cantor case is that your commitment to original is him are real. They are not faint. This is the kind of thing you cant fake. I agree with senator durbin. Being a textual list doesnt guarantee a guarantee result or outcome in any particular case. Style, andicate a preference. Tell me why textualism is important to you. Judge barrett because i think that both statutes and the constitution are law. They derive their democratic legitimacy from the fact that they have been enacted by the peoples rep resented if representatives. Obligation i have an to respect and enforce only that law that the people themselves have embraced. Its not the law of amy, its the law of the American People. That, asm boils down to commitment to the rule of law, to not disturbing or changing or updating or adjusting in line with my own policy preferences. Is it the subjective motivation, the intent of an individual lawmaker or drafter if a provision that we are looking at . Is it original public meaning . If so, what is the difference . Judge barrett original public meaning. Not the subjective intent of any particular drafter. One thing ive told my students in constitutional law is that the question is not what James Madison would do. We are not controlled by how James Madison perceived any particular problem. Is whatecause the law the people understand it to be, not what goes on in any individual legislatures mind. I respect you greatly. But what you think rather than what passes through both houses and is signed by the president , thats the law. Not any private intentions you have. Say iardless lets pass a bill. Im the sponsor of it. I take it down to the floor. I say, heres what i think about it. Heres what i intend to do with it. I put that statement into the legislative record. What impact should that statement have on the meaning of law once it becomes law . Nothing. You have to get it into the law itself if you wanted to be law. Legislative history [inaudible] regardless of how passionately and persuasively i make that point, in whatever gloria speech i gave in support of a bill, it doesnt make a difference, does it . Judge barrett it doesnt. Im sure the speech would be glorious. The point would be made by the advocates in the case. In that respect, you are functioning as an advocate when you make the statement. You are not speaking with the voice of the lawmaker. No individual does. Its the fullbody that speaks. Next abouto speak the Affordable Care act. Weve seen posters going up over and over again. We saw them yesterday. A lot of compelling stories about people whose lives have been marked by difficult things that theyve endured. Theyve involve touching and heartwarming stories. I continue to doubt the relevance of things like that here. Especially in so far as they are being used to suggest that your confirmation to the Supreme Court of the United States has anything to do with their health care. That anyhy you think individual Americans Health toe status is or is not tied your confirmation to the Supreme Court of the United States. Toge barrett it is not tied my nomination to the Supreme Court of the United States. I have said repeatedly under oath that i had no conversations about that case with anyone in the white house. Theres a suggestion that i have an agenda, that i want to strike down peopless protection for preexisting conditions. Thats just not true. Ive never taken that position. Ive said repeatedly, any policy preferences that i have dont matter anyway. They are irrelevant. Making that law, that is your job. It is our job. Its the job of policymaking branches of government. Its the job of whatever combination of state and federal lawmakers and other policymakers have. A judge is not a policymaker. ,hen Congress Passes a law congress is in charge of making sure that works. Insofar as that law ends up being stricken down, its our job to replace it with something that does work. Whether constitutionally or otherwise in all respects. Thats our job. Not yours. Made some comments a few years ago, comments with which i wholeheartedly agree. Raising a criticism with chief Justice Roberts and his majority decision i want ask you to weigh in on this. You made those comments at the time. They are not relevant to me now. I set this up for reasons i will explain in a moment. He rewrote the Affordable Care act, not just once but twice. Tosubstantive ways in order save that lot from an otherwise inevitable finding of unconstitutionality. Because that law was unconstitutional. Latently unconstitutional. He effectively acknowledged that the law as written couldnt pass constitutional muster. So he rewrote it twice in order to save it. Thats water under the bridge. That happened. It is inexcusable that he did that. He misused additional 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 it be fair to say that my strong opinions that ive just expressed do not indicate how i would feel, how i would lean were i a jurist in california versus texas . Judge barrett i think you are correct that the question, the legal issue is entirely different in california versus texas. Severability is its own independent doctrine that has nothing to do with the statutory interpretation questions. In many circumstances, we see emotionally charged issues that boil for a long time. They cant always be resolved. Not everybody will agree on everything. On everybody will agree certain hot button social issues that result from just basic differences in how people view life and how people view their place in the universe. One of those areas where it manifests itself is the area of abortion. People view life and when it begins differently. Some of that is informed by religious beliefs. Some of it is informed by people common sense approach to what they think the law to say. Disputes regarding when life begins and disputes regarding abortion didnt begin with roe v. Wade. Wadedid change with roe v. Was the federalization and the grasping of the issue and the taking up beyond the realm of political debate within the federal judiciary. Were no longerrs in a position to be the primary drivers. As a result, over the last few decades, youve had all kinds of questions that have been put into uncertainty. Youve got uncertainty by people at the state level who want to make their own decisions about certain things around abortion. They know they cant prohibited entirely. They know theres this undue burden standard that has to be addressed. Nobody is completely sure in advance what that means. They work around it. There are discussions that arise regarding health and safety qualifications for Abortion Clinics. How close an Abortion Clinic needs to be to a hospital. How it needs to be staffed. What the sanitation protocols are. Recently, some states passing laws. Theres medical science showing that an unborn human can feel and respond to pain as early as 10 or 12 gestational weeks. Certainly i 20 weeks. By 20 weeks, we are going to adopt a different set of legal procedures for an abortion as a result of that because if this is a human that everybody agrees can feel and respond to pain, we have to handle that differently. All of those things, the legitimacy of the laws, thrown into the federal courts yet again, all because those were made federal issues. I want to be very clear. You have the impression from watching debates in circumstances like this one, in protest outside the Supreme Court of the United States. You would have the impression that if roe v. Wade didnt exist, all of a sudden abortion would immediately become a legal in every state in america. That assumes a lot of facts not in evidence. That assumes a lot of things contrary to evidence. Not the case that the fate of health care in america turns on whether or not someone is confirmed to the Supreme Court of the United States. Nor is it that the availability of an abortion or lack thereof is contingent upon anyones confirmation to the Supreme Court of the United States. That this debate has become as protracted, as personal, as ugly as it has. Suspect we try to take a debatable matter young debate. We try to take it outside the political branches of government where people can elect their representatives and have laws respecting and reflecting the views of their respective communities. What, 330ountry of million americans. Its really difficult to have those 330 million americans reflected in nine members of the Supreme Court. It is still really hard to have them reflected in 100 senators and 435 representatives. Thats doable, especially when those people are elected. They stand for election every couple years. It doesnt happen that way and the Supreme Court of the United States. To my colleagues on the other side of the aisle, who are fear mongering on this, causing people to worry and lose sleep over this, fundraising over this , fundraising over threats that people will lose their health care, that people are going to be dying in the streets because the lack of availability of this or that medical procedure. Have we created a monster . Have we ourselves, through our own inaction, our own voluntary cessation of authority to a nonlegislative branch, have we ofated the very set untenable social circumstances that are causing people to protest outside of a nonpolitical entity . I think we have to ask ourselves that question from time to time. Life is valuable. Its not a religious statement to make that observation. In fact, its the foundation of basically all of our laws. Not just in this country, not just in countries with christian origins, but in basically every country that has ever existed anywhere in the world. The purpose of government is to protect life. Thats what its about. Fact cant agree on the that its reasonable that people a lot to be able to have some , at at least at some limit least at some point be on the moment when an unborn human can feel and respond to pain, something is wrong with us. If we can leave those things perpetually in the hands of the unelected, it might be convenient for political fundraising within congress. Its not good for the United States of america. Its not good for constitutionally limited government. Its not good for our individual liberties. Judge barrett, Alexander Hamilton was prescient in a number of areas. He had some crazy ideas. He did some crazy things. He was also freaking brilliant. I think he foresaw certain aspects of our lives when he described the differences between the branches of government in federalist 78. Thatderalist 78, he said the legislative branch, congress being a political branch, brands whose job it says to make policy , was possessed with will. And that what is possessed by the Judicial Branch is not will, but judgment. He went on to explain that its really important to maintain that clear distinction between well and judgment. Lest you have the Judicial Branch, consisting of people who are not elected by the people, not accountable to the people, and who serve for the rest of their lives so long as they are on good behavior. You cant have them exercising will. Its not their job. What do you think he meant . What is the difference between will and judgment . Judge barrett i think will is the imposition of policy preferences as happens in the making of law. Lawment is evaluating that for its consistency with the constitution, for example. To give another example, to interpret what that means. But it most certainly is not the imposition of policy preferences. A judge who approaches a case as an opportunity for an exercise pretradeas acted, has her judicial duty. How does she know when she has reached that point . Think itrett um, so i requires disciplined judicial decisionmaking. O you approach the text you treated as a text. You treated as law. I described originalism. Have, onece that i check i put on myself to make sure that im not biased, is that when i write an opinion, i try to read it from the perspective of the losing party. So that any sympathy i might feel for the particular results that i reach, i try to make the sympathy run the other way to see if it will still hold. Also to see i would be disappointed in the outcome if it was my child criminal conviction is on the line. What i still think it was a well reasoned opinion . That is the test i use for myself. Discipline is required. I take it very seriously. As weve had this conversation today, one of the arguments that has been made by some of my colleagues referred to act as of ism activism. Some textualed engagedists as having in activism. Now, i want to be clear. Thatne who doesnt believe there is anything worse about an activist judge than a passive is judge. Be aevery bit as bad to pacifist. That is, for example, to let stand an invalid, unconstitutional law as if it were valid and constitutional. Do you agree with me . Both of those are equally instances of bad judging. Judge barrett they are both instances of not following the law. Not following the constitution. Not directly interpreting a statute. , a judge same token who fails to grant a meritorious dispositive notion and a judge grants a nonmarital zoos nonmeritorious dispositive notion. Theyve done equally bad thing. Judge barrett yeah. Does the constitution say anything about the size of the Supreme Court . Judge barrett the constitution does not. Thats a question left open to congress. Its my understanding that it has been nine for 150 years. Thats just a matter of statute, not constitutional requirement. It is statutory. A statutory decision, one that has stood for more than a century and a half. Its a decision nonetheless that has some bearing, could have some bearing on constitutional issues. Correct . Judge barrett insofar as there would be more decisionmakers on the court. Thef we abandoned longstanding historical practice and tradition of having nine justices, could that have an impact on the way that the three branches of government interact with each other . Judge barrett possibly. Its difficult for me to imagine what specific constitutional question youre asking. Of course. There are strong reasons, i believe, why over the 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 wanted. There does have to be a Supreme Court and such inferior courts as we choose to create. It doesnt specify the number of seats that can be on there. Nonetheless, there are good reasons, having to do with respect for the separation of powers between the three branches of government, reasons that have left us to leave that number at nine. The last time that there was any serious effort to move the number above nine was in the fall of 1936 when president Franklin D Roosevelt got tired of the four horsemen of the apocalypse, a few members of the Supreme Court who were voting against his agenda. Moreimes joined by one or other members of the Supreme Court. He got particularly tired of this and so he proposed packing the court. Let me explain what i mean. What i mean when i refer to this is increasing the number of seats on the Supreme Court and doing so by statute would be with the intent of altering the composition of the court for shortterm little game. Political gain. Overwhelming super majority in both houses of congress. Didnttely, fdrs idea make it anywhere. It didnt gain progress. Event enough opposition, with both houses being overwhelmingly controlled by his political party, that it stalled. Quite mercifully. Thens remained ever since at nine justices. I think it would have been a colossal mistake. Joe biden himself as a u. S. Senator, and in 1983, gave a rousing speech that i recommend to all, talking about that very thing. Acknowledging that the constitution doesnt require it but a 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 try to redefine what it means to pack the court. Some suggested Court Packing takes various forms. It can mean confirming a lot of people all at once. Some have defined it so as to suggest that it [inaudible] filling vacancies as they have arisen and doing so with textual list judges. This may not be something that some like. This is not Court Packing. Court packing is itself manipulative. It is something that adds great danger to do great political harm to our government. It would set up a oneway ratchet. Once you create a position and confirm someone, absent death or retirement, that position remains in place. If, for example, a future congress and white house were to decide to get together and pack the court, and increase the number 211. Lets say it is democrats who do that. And weve got joe biden as a president ial candidate who is refusing to say whether he would do it. Theres a reason hes not saying. Theres only one reason why you would refuse to answer that question. If you want to be able to do it but you dont want to take the heat for the fact that you are thinking about doing it right now. That, where does it lead . Inevitably, 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. I dont know what the total number would be. You increase it at all, you change the number at all, you do so for partisan political purposes at all, you delegitimize the court. Courtnt delegitimize the without fundamentally threatening and eroding and impairing some of our most valued liberties. You cant do that without inevitably threatening things. Ike religious freedom things like free speech. Things that are themselves often unpopular but are protected by the constitution, precisely because they are unpopular. In that respect, the constitution is sometimes counter democratic. It can be described fundamentally democratic. Its the whole reason to have a constitution, to protect us from the impulse of a majority that might be bent on harming the few. Law is so the important. Thats why the position for which you are being considered is so essential. Thats why we have to do our job to make sure that the only people who get the job for which you have been nominated fit the bill. You are someone in whom i have immense confidence. Immense trust. I look forward to voting to confirm you for that very position. Thanks. We will take lets come back at 12 45. We will start with senator whitehouse. We have 15 senators left. Everybody takes 30 minutes. Thats 7. 5 hours. We will take a break for dinner tonight, sometime later on. Are you doing ok . At 12 45. Me back right now, we are on schedule to be here until 9 00. We will do whatever the committee wants. We are recessed at 12 45. [inaudible] if you missed any of todays Supreme Court confirmation hearing for judge amy coney barrett, head to our website to watch the hearing in its entirety or search for portions of interest. Thats online at cspan. Org. Also on tomorrows washington journal, we get your reaction to the confirmation process by taking your phone calls and test messages. Washington journal is live every morning at 7 00 eastern. Following washington journal, the third day of the confirmation hearing resumes with judge merrick taking more questions from Committee Members who each have up to 20 minutes. That gets underway at 9 00 eastern live on cspan and cspan. Org. You can listen live on our free radio app. The u. S. Supreme court began its new term hearing oral arguments via conference call. Listen live at cspan. Org supremecourt. Listen to two cases. The justices here arguments. Listen to the oral arguments live or ondemand at cspan. Org supremecourt. Youre watching cspan, your unfiltered view of government. Created by americas Cable Television company as a Public Service and brought to you today by your television provider. Judge, back today to of Amy Coney Barretts confirmation hearing. This portion included questions from senators white house, cruise, klobuchar, koons, and holly