Youre going to see democrats frame their questions along the line of political arguments. Democrats are going to focus on the Affordable Care act again, on abortion, all again arguing that she would turn the court to the right. For the nominee herself, judge barrett, she will follow whats called the ginsberg rule as stated by Justice Ginsberg during her 1993 hearings, and really say i cant answer how i would rule on a particular case. What case i might ciriticize frm the past in the Supreme Court because that could lead to bias when i do consider those cases but we do know about her judicial philosophy, and thats what theyre going to be talking about, she sees the law much like her old boss, the conservative justice antonin scalia. The way Justice Scalia ruled on abortion, and other controversial topics, you clerked for scalia and you follow his judicial philosophy. That would a dramatic departure from the way Ruth Bader Ginsburg saw the law. Lets listen in to senator lindsey graham. 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 dont want it. We want something better. We want something different. You know what we want in South Carolina, South Carolina care, not obamacare, now why do we want that . Under the Affordable Care act, three states get 35 of the money, folks, can you name them . Ill help you, california, new york and massachusetts. Theyre 22 of the population. Senator feinstein is from california, nancy pelosi is from california. Chuck schumer, the leader of the Democratic Senate is from new york. And massachusetts is elizabeth warren. Why do they get 35 of the money when theyre only 22 of the population. Thats the way they designed the law, the more you spend, the more you get. What does it mean for the people ofof South Carolina . If you had a perpatient formula where you got the same amount from the federal government to the state, whether you lived in charleston, columbia or San Francisco or new york city, if you leveled that out, it would be almost a billion dollars more for us in South Carolina. So to my friends over there, were going to fight back. We want our money. If youre going to have money allocated for obamacare, were not going to sit back and quietly let you give 35 of it to three states. What else is happening in South Carolina . Four rural hospitals have closed because the Revenue Streams are uncertain. 30 increase in premiums in South Carolina for those on obamacare. I was on obamacare for a few years before i got on tricare. My premiums went up 300 . My coverage was almost nonexistent. A 6,000 deductible. So i want a better deal, and thats a political fight. Im in a campaign at home. If it were up to me, we would block grant this money, send it back to the states, in a more fair allocation, and we would require preexisting conditions to be covered as part of the block grant. We want sick people covered but i got an idea, i think South Carolina may be able to deal with diabetes better than and different than california. If you want good outcomes in opini medicine you need innovation, and the best way to get innovation is allow people to try Different Things to get better outcomes, so the debate on health care is consolidating all the power in washington, have some bureaucrat youll never meet running this program, versus having it centered in the state where you live. Under my proposal, South Carolina would get almost a billion dollars more. The state of South Carolina would be in charge of administering obamacacare, they couldnt build football stadiums with the money, theyd have to spend it on health care. They would have to cover preexist conditions. As a patien South Carolina, if you dont like what was happening to you on the health care front, you could go to local officials and complain, and the people youre complaining to live in your state. They send their family to the same hospital as you go. Thats a structural difference. Thats got nothing to do with this hearing. Its got everything to do with politics. We on this 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 place holder for Single Payer Health care. If you dont believe me, just ask them. So thats the fight going into 2020. Doesnt make them bad, just makes them different. If it were up to me, bureaucrats would not be administering health care from washington. People in South Carolina would be Running Health care. If it were up to me, we would get more money under obamacare than we do told. 35 would not go to three states. And sick people would be covered so thats the political debate. Were involved in a campaign in South Carolina, and my fate will be left up to the people of South Carolina, so thats what obamacare is all about. Now, how do you play in here, judge . Theres a lawsuit involving the Affordable Care act before the Supreme Court, and well talk about that in a bit. And 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. And i hope that my cloolleaguesn this 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. Now, the bottom line here, judge, you said yesterday something that struck me and i want the American People to understand what you meant. You said youre an originalist, is that true . What does that mean, in english . Ill pass the button, i mean, we all love senator lee, but in english. Okay. So in english, that means that i interpret the constitution as a law, that i interpret its text as text, and i understand it to have the meaning that it had at the time people ratified it. So that meaning doesnt change over time, and its not up to me to update it or infuse my own policy views into it. So in other words, youre bound by the people who wrote it at the time, that keeps you sfrm substituting your judgment for theirs, is that correct . Yeah. Justice scalia, he was an originalist. Yes. People say youre a female scalia, what would you say . I would say that Justice Scalia was obviously a mentor, and as i said when i accepted the president s nomination that his philosophy is mine too, you know, he was a very eloquent defender of originalism. And that was also true of textualism, which is the way that i approach statutes and their interpretation and similarly to what i just said about originalism, for textualism, the judge approaches the text as it was written with the meaning it had at the time, and doesnt infuse the meaning in it. I want to be careful to say that if im confirmed, you would not be getting Justice Scalia. You would be getting Justice Barrett. And thats so because originalists dont always agree, and neither do textualists. Justices scalia and thomas disagreed often enough that my friend teaches a class called scalia versus thomas. Its not a mechanical exercise. Ill wait until the movie comes out. So the bottom line for me is there is a narrative building in this country, and again, you can stand down. This is just me speaking for me. Justice ginsberg was an iconic figure in american history, just not the law. She was a trail blazer, she fought for better conditions for women throughout the society. She was unashamedly progressive in her personal thought. She was devout to her faith. She worked for the aclu. She was proudly pro choice personally, but all of us on this side, apparently when they voted, accepted that she was highly qualified. What i want the American People to know, i think its okay to be religiously conservative. I think its okay to be personally pro choice. I think its okay to live your life in a traditional catholic fashion and you still be qualified for the Supreme Court. So all the young conservative women out there, this hearing to me is about a place for you. I hope when this is all over that you, 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 ginsberg. And to President Trump, i dont know if youre listening or not. By picking judge barrett, you have publicly said you find value in all of these characteristics, but beyond anything else, you find judge barrett to be highly qualified. I would say youre one of the greatest picks President Trump could have made and from the conservative side of the aisle, youre one of the most qualified people of your generation. Lets talk about brown v. Board of education, because i know senator blumenthal will, and im going to talk about that. You said in writings it was a super precedent, what did you mean . Well, in my writings, as a professor, i talked about the its not a term that comes from the Supreme Court, and i think maybe in political conversation or in newspapers people use it different ways. But in my writing, i was using a frame work thats been articulated by other scholars and in that context, super precedent means precedent that is so well established that it would be unthinkable that it would ever be overruled and there are about six cases on this list that other scholars have identified. Lets talk about brown and talk about why it would be unthinkable. First, lets talk about whats 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 in post segregation again. Lets stop there. If you want to make yourself famous by the end of the day, you can see we want to go back to segregation, youll be on every cable tv channel in america. I doubt if youll go very far, but point were trying to make is the court cant wake up and say lets revisit brown, it has to be a case in controversy, is that right . Yes, thats right. So before you could review brown, somebody out there would have to be dumb enough to pass a law saying lets 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. Yeah, i dont either. So lets talk about the process in general. Theres the hellor case whats that about. It held that the Second Amendment protects an individual right to bear arms. Okay. Now, my friends on the left, some of them have a problem with hellor, they may try to challenge the construct, if a state or local government passed a law in defiance of hellor, what would happen . In defiance . That was challenging the construct of hellor. If it was brought in a lower court, hellor binds. Lower court haves to follow Supreme Court precedent. And if the Supreme Court wanted to revisit hellor, what would they do . If challenged hellor, the Supreme Court would have to take that case once it was appealed all the way up. The court would have to decide, yes, we want to overrule hellor, and we have enough votes to grant cert and do so. Thats the process. It would start because there was a law, a lawsuit, then an appeal, and the Court Granted cert. Is that true no matter what the issue is, gun, abortion, health care, campaign finance, does that process hold true for everything . Yes. You always judges cant just wake up one day, and say i have an agenda, i like guns, i hate guns, i like abortion, i hate abortion, and walk in like a royal queen and impose, you know, their will on the world. You have to wait for cases and controversies, which is the language of the constitution, to wind their way through the process. All right. Well, senator sasse gave us a civics lesson. If a state said i dont think you should have over six bullets and somebod 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, there would be parties would have to sue the state, you know, arguing that that 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 Decision Making process begins. You hear arguments from litigants on both sides. They write briefs. You talk to clerks as a judge. You talk it your colleagues. Then you write an opinion. Opinions circulate, and you get feedback from your colleagues. Its an entire process. Its not something that a judge or justice would wake up and say, oh, were hearing this case. I know what my vote is going to be. Lets talk about the two Supreme Court cases regarding abortion. What are the two leading cases in america regarding abortion . Well, i think most people think of roe v. Wade and case is the case after roe that preserved roes Central Holding it but grounded it in a slightly different rational. What is the rationale. That the state cannot impose an undue burden on a womans right to terminate a pregnancy. Unlike brown, there are states challenging on the abortion front. There are states that are going to a fetal heart beat bill. I would a bill that would disallow abortion on demand at the 20 weeks, the fifth month of the pregnancy. Were one of seven nations in the entire world that allow abortion on demand at the fifth month. The construct of my bill is because a child is capable of feeling pain in the fifth month, doctors tell us to save the k d childs life, you have to provide anesthesia if you operate because they can feel pain. The argument im making is you have to provide the anestheia to save the childs life, it must be a terrible death to be dismembered by an abortion. Thats a theory to protect the unborn at the fifth month. If that litigation comes before you, will you listen to both sides . Of course. Ill do that in every case. So i think 14 states have already passed a version of what i have just described. There really is a debate in america still unlike brown v. Board of education, about the rights of the unborn. Thats just one example. So if theres a challenge coming from a state, if a state passes a law, and it goes into court where people say this violates, casey, how do you decide that . It would begin in a district court, in a trial court. You know, the trial court would make a record. You know, the parties would litigate and fully develop that record in the trial courtment then it would go up 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, and at that point it would be the full process, briefs, oral arguments, conversations with law clerks in clahambers, writi an opinion, digging down into it. Its not just a vote. You all do that. You have a policy and you cast a vote. The judicial process is different. Okay. So when it comes to your personal views about this topic, do you own a gun . We do own a gun. Okay. All right. Do you think you could fairly decide a case even though you own a gun . Yes. All right. Youre a catholic. I am. I think we have established that. The tenets of your faith mean a lot to you personally, is that correct . That is true. You have chosen to raise your family in the catholic faith is that correct . That is true. Can you set aside whatever catholic beliefs you have regarding any issue before you . I can. I have done that in my time on the 7th circuit. If i stay on the 7th circuit, ill continue to do that. If im confirmed to the Supreme Court, i will do that still. I would dare say that there are personal views on the Supreme Court, and nobody questions whether our liberal friends can set aside their beliefs. Theres reason to question yours in my view. The bottom line here is that theres a process, you fill in the blanks, whether its about guns and hellor, abortion rights. Lets go to Citizens United. Senator whitehouse, me and you are going to come closer and closer about regulating money. I dont know whats going on out there, but i can tell you theres a lot of money being raised in this campaign. I would like to know where thats coming from but thats not your problem. Citize Citizens United says what . It 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 . Well, it would be the same process i have been describing. First, somebody would have to challenge that law in a case. Somebody presumably who wanted to spend the money in a political campaign. It would wind its way up and, you know, judges would decide it after briefs and oral argument and consultation with colleagues and the process of opinion writing. Okay. Samesex marriage, whats the case that established samesex marriage as the law of the land . Obergfelt. If there was a state who tried to outlaw samesex marriage, theres litigation, would it follow the same process . It would, and one thing ive neglected to say before thats occurring to me now is that not only would someone have to challenge that statute, and, you know, somebody, if they outlawed samesex marriage, there would have to be a case challenging it and for the Supreme Court to take it up, you would have to have lower courts going along and saying were going to flout obergfell, and the most likely courts which are bound would shut a lawsuit down and it wouldnt make its way to the Supreme Court. If it did, it would be the same process i have described. Lets turn now to senator hawleys favorite topic, substantiative due process. As a legal theory. What am i talking about . Can you explain it for the country because if you cant, were if trouble. I think ill have a hard time doing it. So both the 14th and 5th amendments, provided the state cannot take life, liberty or property without due process of law. It sounds like procedural guarantee, but in Supreme Court precedent it has a substantiative component, the due process clause says there are some liberties, rights that people possess that the state cant take away or cant take away without a really good reason. The right to use birth control, the right to an abortion are examples of rights protected by substantiative due process. These are judicially created rights, not found in the document called the constitution, is that correct. The Supreme Court has grounded them in the constitution. But theyre not written. Theyre not expressed. So is it fair to say theres a great debate in the law about how far this should go and what limits should apply, if any . Thats fair to say, theres debate in Supreme Court opinions. Im not eaware of anybody proposing to throw it over entirely, but theres a debate how far it should go. Lets say youre in the camp or anybody in the camp that substantiative due process is a legal concept is unbounded. It makes the constitution no more certain than the five people interrupting it at any given time in the country. Whatever rights they think you have you get. Whatever rights they want to take away from you, they can is a pretty nebulous legal concept. Thats my view of it. Im not imposing my views on yours. Then theres a thing called precedent. Lets say you didnt like a case decided under due process, you thought the whole concept was constitutionally in error. How does precedent play . Precedent is the principle that cases that have been decided by the court before this one lands on the docket are presumptively controlling, and so, you know, precedent comes from a concept call stare decisis, a shorthand for longer latin phrase, stand by the thing decided and do not disturb the calm. Precedent is a principle that youre not going to overrule something without good reason or royal up the law without justification for doing so. So you could say the underlying analysis that led to any case, just case x, i reject that analysis but i will now apply precedent to whether or not it should be reversed. Is that what youre telling us . That is. What other factors would a judge look at in terms of overruling a precedent . The quire begins theres an argument. You could say structurally this case, constitutionally it was wrongly decided but that doesnt end the debate, is that correct . Thats right. You have to look at reliance interests, you have to look whether the law or facts stop right quick, reliance interest by who . Reliance interest by those who have relied on the precedent. The people of the United States. The people of the United States who have ordered their affairs around it. So the hellor case people have relied on the Second Amendment being an individual right, is that correct . Precedent, yeah, presumably so. Abortion would be the right to have an abortion, that would be a reliance factor, right . The court in casey spent a lot of time describing the reliance of people on the right to an abortion. So what i want the public to know is that if you overrule a precedent of the court, even if you think it was wrongly decided, theres a lot list of things you have to look at before you actually overrule the case. Is that a fair way of saying it . Thats a fair way of saying it. Would you apply those factors if you found yourself in a position where you wanted to consider overruling a precedent . Absolutely. Have precedents of the court been overruled before . Yes. Can you give me an example . Brown versus the board of education overruled fegson rgus get rid of the separate but equal doctrine. Recusal, my colleagues are asking you to recuse yourself from litigation around the Affordable Care act. Whats the precedent regarding the Affordable Care act if any . The precedent that is there a precedent on this issue . Theres not precedent on the issue thats coming up before the court. Its turns on a doctrine called severability, which is not an issue in two of the big Affordable Care act cases. So the issue that was before the court was niv versus sabillis. That was the first about the constitutionality of the mandate. And i think congress has zeroed out what the court called attacks and the real issue now is does it stand and can it be severable. The issue now is now that congress has zeroed it out, can it be called a tax or is it now a penalty, and then the second issue is if it is a penalty, can it be just cut out from the statute so that the rest of the statute, including protection for preexisting conditions stands. Well there are a lot f smarter people than me suggest that severability would be a hard challenge for those opposing the law. Time will tell. Do you feel like you should recuse yourself from that case because youre being nominated by President Trump . Senator, recusal itself is a legal issue. You know, theres a statute, 28 usc 455 that governs when judges and justices have to recuse. Theres precedent under that rule. Justice ginsberg in explaining the way recusal works says its always up to the individual justice but involves consultation with the eight justices, so thats not a question i could answer in the abstract. If youre appointed by obama, thats no reason to recuse yourself in a case involving obama policy, is that correct . That would be a decision for each justice to make. If a justice had a conflict with a particular policy issue, they help draft it, that would be a consideration, is that correct . That would be a consideration. So when it comes to refusing yourself, youll do what the Supreme Court requires of every justice . I will. Okay. Thank you very much. How does it feel to be nominated for the Supreme Court of the United States . Well, senator, ive tried to be on a media blackout for the sake of my mental health, but, you know, you cant keep yourself walled off from everything, and im aware of a lot of the caricatures floating around. What i would like to say is i have made distinct choices, i have 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. And in my personal interactions with people, i mean, 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, and the same is true professionally. I mean, i apply the law, and senator, i think i should say why im sitting in this seat in response to that question, too, why i have agreed to be here, because i dont think its any secret to any of you or the American People, this is difficult, some might say excruciating process. And jesse and i had a very brief amount of time to make a decision with momentous consequences for our family. We knew our lives would be combed over for any negative detail. We knew our faith would be caricatured our family would be attacked and we had to decide whether those difficulties would be worth it because what sane person would go through that if there wasnt a benefit on the other side. And the benefit i think is that im committed to the rule of law and the role of the Supreme Court and dispensing equal justice for all, and im not the only person who could do this job, but i was asked, and it would be difficult for anyone, so why should i say someone else should do the difficulty if the difficulty is the only reason to say no. I should serve my country, and my family is all in on that because they share my belief and the rule of law. Well, thank you, i think a lot of people would say you got to be sort of insane to run for the senate this this world. Good news for you, weve all chosen kind of crazy stuff to do. I just end with this. Im glad you said yes. Im glad President Trump chose you. And really before the people of the United States is a very basic question, is it okay to be religiously conservative . Is it okay to be pro life in your personal life . It clearly is okay to be progressive and be pro choice and seek the seat on the Supreme Court. I think resoundingly yes, and heres why your nomination is so important to me. In my world, to be a young conservative woman is not an easy path to take. We have two women on this committee that can talk about it better than i, so i want to thank President Trump for choosing you, and i will do everything i can to make sure that you have a seat at the table. And that table is the Supreme Court, and if anybody in the country in my view deserves to have a seat at the table based on the way they have lived their life and their capabilities in the law, it is you, judge, god bless you, thank you. Thank you, chairman graham. Senator feinstein. Mr. Chairman, judge, its wonderful to see you here. Also with a family that i have been observing. They sit still, quiet, you have done a very good job. I have eyes in the back of my head. They know im watching. I was wondering if you might introduce us to them. Sure. So i have my husband jesse, my son jp, my daughter emma, my daughter juliette, my daughter tess, my daughter vivian, and my son liam, and then behind them are my six siblings with me today. Ill start the side right behind vivian, my sister vivian, my sister ilene, my brother michael, my sister megan, and my sister amanda and is kari in the room. And my sister kari is kiting rig sitting right over there. You dont have a magical formula for how you do it, your children and your job and your work and your thought process which is obviously excellent, do crow. Its improv. Yes, yes. Well, let me begin with a question that the chairman touched on. And its of great importance, i think, because it goes to a womans fundamental right to make the most personal decisions about their own body. And 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 really deeply, deeply concerning. During her 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. And 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 well being and dignity. Its 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. End quote. At one point, our former colleague, orrin hatch, then the Ranking Member of this committee, commended her for her being quote very forthright in talking about that, end quote. So i hope, and you have been thus far, be equally forthright with your answers. In planned parenthood of southeastern pennsylvania versus casey, Justice Scalia, as was said earlier joined the descent which took the position, and i quote, we believe that roe was wrongly decided and that it can and should be overruled, consistent with our traditional approach to starry stare decis do you agree with Justice Scalias view that roe was decided. I want to be forthright. I think on that question, you know, im going to invoke justice kagans decision which was perfectly put. She was not going to grade precedent or give it a thumbs up or thumbs down, and i think in an area where precedent continues to be pressed and litigated as is true of casey, it would be particularly, it would actually be wrong and a violation of the cannons for me to do that as a sitting judge. So if i express a view on a precedent one way or another whether i say i love it or i hate it, it signals to litigants that i might tilt one way or another in a pending case. So on something that is really a major cause with major effect on over half of the population of this country who are women, afterall, its distressing not to get a straight answer. So let me try again. Do you agree with Justice Scalias view that roe was wrongly decided . Senator, i completely understand why you are asking the question. But, again, i cant precommit or say yes, im going in with some agenda because im not. I dont have any agenda. I have no agenda to try to overrule casey. I have an agenda to stick to the rule of law and decide cases as they come. As a person, i dont know if youll answer this one either, do you agree with Justice Scalias view that roe can and should be overturned by the Supreme Court . Well, i think my answer is the same because, you know, thats a case thats litigated. It could, you know, its contours could come up again, in fact, do come up. They came up last term before the court. So i think, you know, what the casey standard is and that just is a contentious issue which is i know one reason why it would be comforting to you to have an answer. I cant express views on cases or precommit to approaching a case, any particular way. Well, that makes it difficult for me. And i think for other women also on this committee because this is a very important case and it affects a lot of people, millions and millions of women. And you could be a very important vote, and i had hoped you would say, as a person, youve got a lovely family, you understand all of the implications of family life. You should be very proud of that. Im proud of you for that. But my position is a little different. Youre going on the biggest court of this land with a problem out there that all women see one way or another in their life. Not all, but certainly married women do. And others too. And so the question comes what happens, and will this justice support a law that has substantial precedent now . Would you commit yourself on whether you would or would not . Senator, 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 that i will follow the law of stare decisis applying it as the court has articulated it, applying all the factors, reliance, workability, being juunderminedy later facts and law, and all the standards, i promise to do that for any issue that comes up, abortion or anything else, ill follow the law. I think thats expected, and well, i guess ive gone as far as i can. Let me go to another issue. This country is facing great gun violence. Theres been a surge in gun sales during the covid19 crisis, which has led to more lives being needlessly lost. According to the gun violence archive, an independent research organization, there were 60 Mass Shootings in may alone. These shootings killed 40 people. They hurt 250 more. Also, theres been a troubling spike in gun sales. Americans bought approximately 2 million guns this past march. Its the second highest 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 9,500 sales blocked in march of 2019. Do you agree that federal, state and local governments have a compelling interest in preventing a rise in gun violence . Particularly during a pandemic. Well, senator, of course the constitutionality of any particular measure that was passed by state or local governments or by this body would be subject to the same judicial process that i described with senator graham. What i will say because this is just descriptive of hellor, hellor leaves room for gun regulations. Hellor does not make a i thought rad an absolute. Let me ask one more question, in a reseecent dissenting opini there was no question that end quote that keeping guns out of the hands of those who are likely to misuse them is quote a very strong governmental interest. Do you stand by that statement . So lets see. I cant remember precisely the words of cantor, which is the case in which i dissented, which i think thats right. Cantor v barr. What i said in that opinion i stand by is the original meaning of the Second Amendment, and i went through a lot of detailed history in that case does support the idea that governments are free to keep guns out of the hands of the dangerous. So for example, the mentally ill, others who would be likely to misuse guns. So 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, we have our religions, we live by that. I respect you and your family for doing just that. But this is a very real problem out there. And 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. I think what i can say is that my opinion in cantor shows how i approach questions as a matter of judicial philosophy. I mean, i spent a lot of time this that opinion looking at the history of the Second Amendment and looking at the 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 carefully at what the original meaning was. That was the method that both the majority and dissent in hllor took, i would come to that with an open mind applying the law as i could best determine it. Okay. Let me move on. One of my constituents, christina garcia, was able to obtain Insurance Coverage and have surgery that saved her eyesight, only before the knocke Affordable Care act. Senator baldwin has a constituent, Jimmy Anderson in her home state of wisconsin, and she asked that this story be shared. Jimmy is a 34yearold and member of the wisconsin state legislature. In 2010, a drunk driver hit the familys 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 th waist down. His medical recovery was intense. As jimmy has said, quote, doctors managed to patch me up with dozens of stitches and multiple surgeries and about a pound of steel on my spine, end quote. But soon after, his Insurance Company told him he was nearing his lifetime maximums. And he would have to pay for the rest of his health care expenses. As jimmy explains, quote, with hundreds of thousands of dollars still left to go, i dont know what i was going to do. I was scared. I was terrified. I was just a student. I didnt 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 jimmys 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 protection against Lifetime Coverage caps, caps that can be used to end coverage for life saving care factor into a courts consideration of the validity of the aca . Senator, so far as i know, the case next week doesnt present that issue. Its not a challenge to preexisting conditions coverage or to the lifetime maximum, you know, relief from a cap. Well, what is your view . Of how it should factor in . Lets see. I think that any issue that would arise under 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 that it would for anyone, and if there were policy differences or policy consequences those are for this body. For the court, its really a question of adhering to the law, going where the law leads and leaving the policy decisions up to you. For me, my vote depends a lot these responses because these are life or death questions for people. Its my understanding that you were critical of Justice Roberts for upholding the aca, stating that he quote pushed the Affordable Care act beyond its plausible meaning to save the statute. End quote. And in what way did justice, did the chief justice go beyond the acas plausible meaning . So ive written about this and that description is consistent with the way the chief justice described if in his own majority, king versus burrwell, where the court had to decide whether the phrase established by the state included exchanges that were established by the federal government, and the majority in that case acknowledged that treating the phrase established by a state as including exchange by the federal government was not the most natural reason but other reasons, and cannonsover interpretation, they chose to adopt the less natural reading. You see, for me, the case coming up, california v texas puts a whole new weight on your nomination. Because the Affordable Care act is now being so well accepted, i represent the largest state as does senator harris, that we have. And there are just over 10 Million People dependent on the activities under this act, and that they be sustained and so there is really great concern about what your view is. That case is coming up. Can you give us at least your view . Senator, the issue and the case thats coming up doesnt involve, its not the same issue as the ones that nfib or king versus burwell. Well, then give us both. Well, lets see. So what i have said, what you quoted to me was that i thought that the interpretation of the phrase established by a state was stretched when the court held that it was established by the federal government. Thats not the issue in california versus texas. The issue in california versus texas is if whether now that congress has just completely, you know, zeroed out the mandate, whether its still a tax or a penalty, and even if so, is it constitutional and then even so is that fatal to the statute . Theres a doctrine called severability, which sounds like legalese, but what it means is it okay with the statute, could you 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 statue that the whole statute falls. The issue in the case is this doctrine of severability, and thats not something that i have ever talked about with respect to the Affordable Care act, honestly, i havent written anything about severability that i know of at all. So you have no thoughts on the subject . Well, its a case thats on the courts docket and the cannons of judicial conduct, yoyou know, would prohibit me from expressing a view. Okay. Ill move on. On july 30th, 2020, President Trump made claims of voter fraud and suggested he wanted to delay the upcoming election. Does the constitution give the president of the United States the authority to unilaterally delay a general election under any circumstances . Does federal law . Well, senator, if that question ever came before me, i would need to hear arguments from the litigants, and read briefs and consult with my law clerks and talk to my colleagues and go through the opinion writing process. So, you know, if i give off the cuff answers, then i would be basically a legal pundit, and i dont think we want judges to be legal pundits, i think we want judges to approach cases thoughtfully and with an open mind. Okay. Let me try something else. In 2017, in a case called eeo eeocv v ae tauto zone issued an opinion for an employer to intentionally assign 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 quote contrary to the position that the Supreme Court has taken in analogous equal protection cases as far back as brown v the board of education. The case was appealed to the funnel panel of the 7th and you cited as i understand it, with the sided with the majority to deny a rehearing let the opinion stand. Is that correct . That is correct, and i think i need to give a little context for what it means to vote to deny to rehear something on bunk. Our court just like the Supreme Court and the process doesnt take cases because we think the panel got it wrong. Theres a lot of deference to panels and rule 35 of the rules of appellate procedure constrains and limits the times in which we take the resources of the full court to rehear a case, so i was not on that panel, and i did not express a view on the merits, a vote to denial to hear something on bunk is like a vote not to deny not a vote that expresses the vladimir put Vladimir Puti views on the merits. It was a statutory case. Let me ask you a question of a person, if an employer can transfer an employee based solely on his or her 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 v the boards prohibition of separate but equal. Senator, to my knowledge, brown wasnt at issue in the opinion, it turned on statutory language in title 7, but again, i didnt express a view on the merits, so i cant comment on whether i think the Panel Majority got that right or got that wrong thats an issue that may welcome before me even in the 7th circuit. I may be on a panel that has to decide whether that precedent was wrong. Let me ask you, as a person, do you have a general belief . As a person, i have a general belief that racism is abhorrent. That racism is what . Abhorrent. I think we would all agree with that. So how should a lower court in the 7th determine when racebased policies could constitute a materially adverse employment action . Im not aware of cases presenting the contact same facts. Im just asking you for your view. You know, i know that material adverse consequence was the standard at issue in that case. I have to confess that i would need to look at the statute and the precedent. Well, even if i had a specific hypothetical in front of me, i couldnt really say without looking at the statute and precedent what factors are involved because i wasnt on that panel, and havent decided a similar case. Okay. Let me go to another issue. The issue of lgbt equality is very personal for me. I spent two decades as a county supervisor and mayor of a city. I watched firsthand as the Lgbt Community fought for legal recognitionov 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, del martin and phyllis lion, 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 and employment housing in 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 neve 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 same sex couples cannot be denied the fundamental right to marry. Del died two months later. Because of the federal defense of marriag 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 activists. In 2013, as you probably know because you know so much about this, you asked v windsor, the Supreme Court struck doma down. Two years later, in v hodges, the Supreme Court recognized that the fundamental right to marry could not be denied to lgbt americans. Both decisions were decided by a 54 margin. Justice ginsberg was in the majority. Justice scalia dissented in both cases. Now, you said in your acceptance speech for this nomination that 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 . 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 that just because Justice Scalia decided a decision a certain way that i would too but im not going to express a view on whether i agree or disagree with Justice Scalia for the same reasons i have been giving, Justice Ginsberg with her characteristic pithonist view used this to describe how a nominee should comport herself at a hearing, no hints, no previews, no forecasts. That had been the practice of nominees before her. But everybody calls it the ginsberg rule because she stated it so concisely, and its been the practice of every nominee since. So i cant and im sorry to not be able to embrace or disavow Justice Scalias position, but i really cant do that on any point of law. Well, thats really too bad because its rather a fundamental point for large numbers of people, i think, in this country. I understand you dont want to answer these questions directly, but the great you identify yourself with the justice. And there you hear judge barrett saying you will not be getting Justice Scalia, you will be getting Justice Barrett. She is an originalist, a conservative, but on many of these questns, jan crawford, she said she will not be nailed down. And dont assume just because Justice Scalia voted one way she would do the same thing. Refusing to just as every nominee has done on the right or left. You saw how this hearing will unfold. Senator feinstein hitting on every major social issue that could come before the court, whether it was guns, abortion, Affordable Care act, gay rights, thats what the rest of the day is going to look like from the democrats. And our coverage will continue on our 24 hour streaming network, cbsn. You can watch at cbsnews. Com or on our cbs news app. There will be more on your local news on this cbs station and a full wrap up opt cbs evening news. This is been a cbs news special report. Im norah odonnell, cbs news, washington. For news, 24 hours a day, go to cbsing out a lot of families this morning and we will here good morning to you, our viewers in the west. Welcome to cbs this morning. Its tuesday, october 13th, 2020. Ill gayle king with Anthony Mason and tony dokoupil. The president spreads his aftere his d di the lingering questions over his treatment plus what long lines for early voting mean. Supreme Court Nominee faces questions. Amy Coney Barrett is being grilled on capitol hill on health care and roe v. Wade. Well have the latest on todays hearing. Another vaccine trial is paused. A second major study is put on hold after a volunteer becomes sick for unn