Transcripts For FOXNEWSW Americas Newsroom 20201014

She was such a great listener. Kindness and empathy throughout. Of course, lets dont forget the notepad moment im here. Ask your questions, all i need is my United States senate notepad and Starbucks Coffee and were doing great. Thanks to all of you. Stand by. Senator graham gavels to order. Women conservatives have had a hard time. Some want to marginalize the contribution because you come out on a different side of an issue, abortion. This hearing is not to punch through a Glass Ceiling but a concrete barrier around conservative women. Youll shatter that barrier. Ive never been more proud of a nominee than i have of you. You have been candid to this body about who you are and what you believe and reassuring in your disposition and this is history being made. The first time in American History weve nominated a woman who is unashamedly prolife and embraces her faith without apology. She is going to the court. A seat at the table is waiting on you. And it will be a great signal to all young women who want to who share your view of the world that there is a seat at the table for them. This wont be celebrated in most places. Be hard to find much commentary about this moment in American History, but in many of our worlds this will be celebrated. This has been a long time coming. And we have arrived. So i want to thank President Trump for giving you the opportunity to showcase your talents. I believe that Justice Sotomayor and kagan were incredibly qualified women of great character, disposition, and integrity. And i believe the same about you. So lets talk a little bit about yesterday obamacare. This hearing has been more about obamacare than it has you. Obamacare is on the ballot. If you want socialized, single payer healthcare thats on the ballot. Why do many of us object to obamacare . It was written and passed on a partisan line, i think on christmas eve. Most big changes in society have more buyin than that. You are talking about 1 5 of the american economy. As i said yesterday from a South Carolina point of view, this has not worked out well. We started with five exchanges. Were down to one. You have one choice. Four rural hospitals have closed. Premiums have gone up by an average of 30 , not down. When you look at the formula used by obamacare, i can understand why senator harris likes it the way it is. I can understand why Chuck Schumer likes it the way it is. Three states get 35 of all of obamacare dollars. New york, california, massachusetts. Theyre 22 of the population. In South Carolina if you had a per patient formula no matter where you lived you got the same contribution from the federal government. South carolina would receive almost an additional billion dollars. I dont blame california, new york and massachusetts wanting more. People in South Carolina should blame us for accepting that construct. When it comes to healthcare, we all have our different positions but today is about you. And today is about whether or not you are qualified to serve on the highest court in the land. Severability, can you tell me again . I know youve been asked 100 times, the doctrine of severability, what does it mean . Push the red button. I cant hear you now. There we go. So the doctrine of severability is a doctrine essentially of statutory interpretation. What it means is if you have a statute and the Affordable Care act is a long statute, if there is one provision within the statute that is unconstitutional, the question is whether that one section can simply be rendered null and excised from the statute, severed so that the rest of the law stands, or whether that provision is so central to the statute that its unconstitutionality, once it is pulled out the house of cards collapses. The presumption is often in favor of severability. The question of your intent. Go ahead. The main thing is the doctrine of severability has a presumption to save the statute if possible, is that correct . Thats correct. I want every conservative in the nation to listen to what she just said. The doctrine of severability presumes and its goal is to preserve the statute if that is possible. So from a conservative point of view, the generally speaking we want legislative bodies to make laws, not judges, is that correct . That is correct. Would it be further true if you can preserve a statute you try to to the extent possible . Thats true. Thats the law, folks. Abortion. You were read some statements by i think whats the name of the Prolife Group . The st. Joseph county right to life. And you were asked by senator blumenthal, who i respect, whether or not their policy positions were illegal. Do you remember that . I remember him asking me whether i accepted other policy positions on in vitro vertlization and whether it was a rejection of roe. They took a statement from that group or some other group arguing for the criminalization, remember that . The criminalization of ivf, is that right . Yeah, i think so. Okay. And here is my problem with that analysis. That was a position taken by a prolife county organization. Its not your job to pass judgment on the thoughts and beliefs of americans, is it, as a Supreme Court justice . , no it is not. When they argue that something should be criminal, they have a right to make that argument, right . They do. It also wasnt in the ad that appeared next to the statement. How does something become criminal in our legal system in america . When a legislative body passes a statute. Here is what i want you to know. Statements by political organizations are not law. And what weve tried to do yesterday was turn a Prolife Group into a legislative body and tried to get you to rule on their beliefs. I think that is a dangerous thing for americans to be asking a judge to do whether you are on the right or the left. Here is a statement from an organization. I dont particularly agree with it. I want you to pass judgment as to whether or not that is legal. The question for you would be if some legislative body tried to criminalize this procedure, then that would be subject to litigation in court, is that correct . Thats correct. A case in controversy dont arise because you disagree with a statement of a private person or a private group, is that correct . That is correct. A case and controversy arises around criminal law when somebody passes a criminal statute, is that correct . Thats correct. Then and only then would you determine the constitutionality of that provision, is that correct . Not even then. The statute would have to be enforced against somebody. A prosecutor would have to hold someone criminally libel for getting ivf for example. The case in controversy would have to mature quite a lot of maturation required. Before it got to the Supreme Court. It is not the role of the Supreme Court justice to pass judgment on your opinions. Its a role of a Supreme Court justice in very limited circumstances to pass judgment on laws passed by legislative bodies and other circumstances regulation, i would suppose. Now, voting. Is it appropriate for legislative bodies to protect the integrity of the ballot box . So any specific measures that legislative bodies took to protect the integrity of the ballot box could be subject to litigation and challenge. As they are developed, the courts will hear cases if cases and controversies arise, right . Yes. One of the reasons we dont have an agreement with the house is in their 2. 2 trillion package they are mandating ballot harvesting. As a national policy. I think its ripe for fraud. Weve seen evidence of ballots being placed in peoples cars and dropped in ditches. So i have think there will be an effort, i hope, to protect the integrity of the ballot and also insure easy voting. I dont think they are contrary goals for the nation. Now, when it comes to being on the court itself and collaborating with other members of the court, what is your experience been at the 7th circuit level . How has that played out . It is so collegial. We all collaborate. I have the greatest respect and have had wonderful interactions with every single one of my colleagues. Do you think you have the capability to in at the Supreme Court . I hope so. Okay. So we talk a lot about laws, legalizing samesex marriage, whats the name of the case . Obergefell. If anybody tried to change that precedent, one of the things you would look at is the reliance interest that people have formed around that piece of legislation. Yes. Same with casey and roe. Yes. So reaching a decision that the case was wrongly to society doesnt end the debate in terms of whether or not it should be repealed, is that correct . That is correct. And there is a very rigorous process in place to turn over precedent . Yes, many, reliance being one. Is there any constitutional right to a polygamist relationship . Lets see. That might be a question that could be litigated. Polygamy in many places is illegal now. But that could be an issue somebody might litigate before the court at some point. If somebody made the argument its possible for three people to love each other and it could make its way to the court if somebody wanted the make that argument yes. Youve been asked a lot about rowe and casey. One of the differences between board of education and roe line of cases is there is active litigation regarding roe, is that correct . That is correct. I think senator hirono named eight or nine Different Cases that may come up to the court. Cases in controversy and one of the reasons you cant tell us how you would rule is because there is active litigation coming to the court, is that correct . That is correct. One of the reasons you can say with confidence that you think brown versus board of education super precedent is that you arent aware of any effort to go back to the good old days of segregation by a legislative body, is that correct . That is correct. Ive also said in lectures that brown was correct as an original matter. Thats the kind of thing since i said in writing i thought i could express before the committee. When it comes to heller there are legislative bodies all over the country passing laws regarding gun ownership. Are you aware of that . Yes. When it comes to Citizens United there will be some efforts after this election to maybe revisit that case. So the thing that im trying to establish here is that heller, Citizens United, roe, casey are all actively being litigated because legislative bodies are playing in that arena, is that a fair statement . Thats a fair statement. So your point to us is when its likely that case and controversies around the holding of a particular case are going to come to the court, there is only so much you can tell us about what you may or may not do. Absolutely. So that roe v. Wade compared to board of education is not super precedent. Not super precedent as i was using the term in the articles referred to. From a common sense point of view why its not super precedents. In the fifth month of pregnancy, 20 weeks, an unborn child is capable of feeling pain, im making the argument there is a compelling state interest to protect that unborn child from abortion. There is only seven nations on the entire planet that allow abortion on demand in the fifth month. Thats a political exercise were going through. 14 states have passed a version of what ive just described. That will be coming to the court i would imagine in the future. All i ask is that will you listen to both sides of the argument if it gets to you . I will. Thank you. Judge, all i can say, i met a lot of people in this business and very impressive people. One of the highlights of my time on the committee is to get to meet incredibly talented, smart, squared away people. Judge, Justice Roberts sat right before you and didnt have a note. A lot of people on my side are upset with him about this or that. Sometimes i disagree with him but i do know this. That he is doing what he thinks is best for the court and for the country. Justice sotomayor and kagan. Delightful people, incredibly, wickedly smart. Justice kagan had a biting sense of humor and they are on the court because they should be. They are on the court because they live lives worthy of being on the court. Theyre on the court because theyre some of the smartest people in the land about the law. Theyre on the court because theyve lived incredibly productive and meaningful lives. Justice gorsuch and kavanaugh are both on the court for the same reasons. As to you, you are every bit in their league. In my view, this is exactly where you should be going, to the Supreme Court, that the United States of america will benefit from your participation at the Supreme Court. You will offer a point of view that millions of americans share. You will have Life Experiences that will round out the court. You will apply the law to the facts. And that you are going to inspire a lot of young women just like Justice Ginsburg did, just like Justice Sotomayor and kagan did, and the young women that you are going to inspire dont have a whole lot of role models they can point to in terms of the media world in which we live in uplifting them. Thats about to change. To my democratic colleagues, i understand where you are coming from, i understand what you want the court to do. You want the court to do things differently than we do. I dont question your motives and i want to thank you for conducting this hearing in a way that has been respectful, has been challenging, and the process will be moving forward here. And from the committees point of view i think were on track to do it in a way that hopefully people will say even though you disagree, strongly, you arent that disagreeable. Senator feinstein. Thank you very much, mr. Chairman. Judge, i must say im delighted to see your family here again. And i hope they feel that very special sense of pride in you. Im sure they do. And i think, you know, i was thinking of my children and grandchildren and this is really a once in a lifetime occasion, so i hope they find it very special in their lives. Thank you, senator. Youre welcome. Yesterday you spoke of california versus texas, the current case seeking to strike down the Affordable Care act. You said i think that the issue before the court is severability meaning whether the court can still uphold the Affordable Care act if it rules that the individual mandate is unconstitutional. And you said yesterday this question was not before the court. As i understand this, chief Justice Roberts and the majority did involve the issue of severability in a case known as the nfib, National Federation of independent business versus sebelius. There the chief justice and 54 majority struck down one part of the law, the Medicaid Expansion provision, but allowed the rest of the law to stand because they found it was serveable from the portions they struck down. Justice scalia dissented from this conclusion and stated that, quote, the unconstitutionality of the individual mandate and the Medicaid Expansion requires the invalidation of the Affordable Care acts other provisions, end quote. In other words, the justice believed that the law was not serveable and the entire law had to be struck down including provisions protecting people with preexisting conditions. You have been close to the justices philosophy and in these hearings you have also said you would reach all the same conclusions. So can you explain to us today how you would disagree or agree with Justice Scalias view of severability in that nfib National Federation of independent Business Case . What i think i can say without expressing disagreement or agreement for the reasons i said yesterday, not being able to grade precedents, the severability issue first of all the Majority Holding as you recognized was that even though the medicaid provision was unconstitutional, it was serveable so Justice Scalia expressed his view and dissent. Even by Justice Scalias view the issue would be different in california versus texas. For two reasons. One, Justice Scalia thought two provisions of the constitution were unconstitutional. If you picture severability being like a jenga game. If you pull two out will it still stand . Justice scalias view if you pulled out the two provisions could it still stand . Here were talking about one. Congress has amended the statute since nfib versus sebelius and zeroed out the mandate. California versus texas involves a different provision because of the zeroing out that was done by amendment. So thats how the two cases present slightly different issues. What do you think of all that . What do i think of yeah. Of severability . In that instance. I think the doctrine of severability as it has been described by the court serves a valuable function of trying not to undo your work when you wouldnt want a court to undo your work. Severability strives to look at a statute as a whole and say would congress have considered this provision so vital that kind of in the jenga game pulling it out congress wouldnt want a statute anymore. Its designed to keep your intent. Severability is designed to say will Congress Still want the statute to pass without this part . Insofar as it tries to effectuate what congress would have wanted, it is the court and Congress Working hand in hand. Thank you. Thats quite a definition. Im really impressed. Thank you. Some have argued that the Medicare Program is unconstitutional. Well, an unconstitutional exercise in congressional spending power. They believe that the spending power does not exist at all. In talking about medicare and social security, Professor Mike rappaport of the university of san diego law wrote this. It is worth remembering that these programs would never have taken their pernicious form with the constitutions original meaning had been followed in the first place. Do you agree with originalists who say that the Medicare Program is unconstitutional . And if so, why . Im not familiar with that article by professor rappaport. I dont know what reasoning he advances for claiming that power in exercised like the medicaid prove ition would be. Its the law and liberty 2015. Do you agree with originalists who say that the Medicare Program is unconstitutional . I cant answer that question in the abstract because as weve talked about the no hints, no forecast, no previews rule. I dont know what the arguments would be. I assume professor rappaport lays out a case. Not a question ive ever considered before. If i did consider it, it would be in the context of an actual case or controversy. It is hard for me to believe thats a real question because i think the Medicare Program is really sacred in this country. Let me ask you last april amidst the covid19 the Supreme Court that would have extended the states deadline for committing absentee ballots and given voters greater flexibility in casting absentee ballots for the primary election. Ginsburg dissented and criticized the courts majority for putting its head in the sand with regard to the risks posed by covid19. She emphasized that courts and Election Officials must be able to react to a grave, rapidly developing Public Health crisis and she noted that the Supreme Courts quote suggestion that the Current Situation is not substantially different from an ordinary election boggles the mind, end quote. Would you agree and what is your position . Senator feinstein, thats obviously a very recent case and in that case the court had to address the constitutional question and so again its one of those things that i cant answer both because it would be requiring me to grade and express agreement or disagreement with the Supreme Court opinion but also its the kind of case that could come up in a closelyrelated form. Either on the 7th circuit, wisconsin is within the 7th circuits jurisdiction or on the Supreme Court. Okay. Let me try again with something. After President Trump announced your nomination to the Supreme Court, you discussed the judicial philosophy of the late Justice Scalia. Specifically you stated his judicial philosophy is mine. During oral arguments in the 2013 case shell by county versus holder he questioned the strong congressional support for reenactment of the Voting Rights act. He argued that this support was not attributable to the fact that we need the Voting Rights act. Rather, he stated that he believed congress reenacted the bill due to a quote phenomenon thats called perpetuation of racial entitlement, end quote. What is your reading of this and your understanding of the history of the Voting Rights act . Well, when i said that Justice Scalias philosophy is mine, too, i certainly didnt mean to say that every sentence that came out of Justice Scalias mouth or every sentence that he wrote is one that i would agree with. When i said Justice Scalias philosophy is mine, too, what i meant is that his jurisprudence approach is the same that i would take. I think as to the Voting Rights act, i think that it was a triumph in the civil rights movement. Well, a question arises in my mind of course, my view is that we always need this. This is a bullwark of our democracy. Is need subjective . I think we do need a Voting Rights act and its subjective in that sense. Well, i think senator feinstein, the question of how the coverage formula is calculated and the Voting Rights act and the contours of the Voting Rights act and whether the county was rightly decided or not, i cant give an answer because Shelby County has been controversial. It could come up before me on the court and could be relitigated. Let me give you because i think this is really important because it shows the basic philosophical bent of an individual. For me the Voting Rights act is extremely important and it defines our election system to a great extent. Its hard for me to understand that anyone would want to do away with it. What is your position in that regard . As i understand Shelby County, it said that the coverage formula was outdated from the 1960s for subjecting particular states requiring them to get preclearance. It is my understanding and i havent looked at the case in a while, that Everything Else about the Voting Rights act remained intact, including its prohibition in elections. Let me ask you this question. A hard one. Do you agree with Justice Scalias assertion that the Voting Rights act is a perpetuation of racial entitlement, end quote . Senator feinstein, i dont know what Justice Scalia was thinking when he said that. And any characterization of the Voting Rights act or a Statement Like that is simply not something i can opine on because, you know, that is tied in, i would think, with the Shelby County question. Im not asking for a formal opinion, but would you believe that its a perpetuation of racial entitlement . Senator feinstein, that goes to the question of whether the coverage formula was outdated and needed to be updated from the 1960s or not. I take that to be the thrust of the disagreement in Shelby County and the position Justice Scalia was taking. I cant express a view of Shelby County and which had the better argument. Let me move on to workers rights and age discrimination. In a 2019 case, kleber versus Care Fusion Corporation you joined a majority in holding that age discrimination in employment does not protect job applicants against Employment Practices that have a disproportionately harmful impact on older applicants. The opinion you joined as i understand it dismissed the claim brought by a 58yearold lawyer who was passed over for a job that was offered to a 29yearold applicant with less experience. I think im concerned by the implications of the decision. According to aarp, approximately 35 of the United States population is now 50 years or older. Almost 29 of households are headed by someone near or past retirement age who have no savings or pension. According to the eeoc, study after study has shown age discrimination, quote, remains a significant barrier for Older Workers, end quote. And older applicants are more frequently denied job interviews than middleaged applicants. Additionally older and middleaged women are subjected to more age discrimination than men. The eeoc has found that the Great Recession during president bushs administration quote forced many Older Workers to revive their retirement plans to work longer to recoup drained retirement accounts and lost savings. So here is the question because i think it is going to be an increasing problem for the court. What do you understand to be the purpose of age dis of the age discrimination in employment act . Well, in kleber versus care fusion i joined the majority of the court. It was a case we heard as the full court. The question is whether the prohibition on age discrimination covered applicants or only employees. And the statute said employees and so an applicant isnt an employee. So the majority said that the statute by its terms didnt cover the conduct. But i think thats an instance. I talked yesterday quite a bit about whose role it is to update statutes or extend them. I think thats an instance in which congress could well address this problem by amending the statute to include applicants in it. So where would you stand on the general subject matter . Well, since i cant impose the law of amy, that would be up to the congress to decide, or many state legislature tours have different antidiscrimination prohibitions that offer even more protection than some federal statutes. Okay. Lets talk for a moment. In 2013 you wrote i can this is a quote. I the end to agree with those who say that a justices duty is to the constitution and that its thus more legitimate for her to enforce her best understanding of the constitution rather than a precedent she thinks clearly conflicts with it. If you are presented with a case where your view of the constitution conflicts with Supreme Court precedent, what will control your decision . Your understanding of the constitution or precedent . Senator feinstein, im really glad you brought that up. Because that quote was mentioned a lot yesterday and im happy to have an opportunity to explain the context. That entire article i think that there has been some misunderstanding perhaps because that sentence. First of all it was citing a footnote to both an originalist scholar and progressive constitutionalist. It was defending the Supreme Courts current doctrine which a courts constitutional precedent and stare decisis against claims that we should have no doctrine of stare decisis at all and against claims it should be absolute and completely tied. So i actually wasnt arguing for any alteration to stare decisis doctrine, i was saying this is how it is, this is how the Supreme Court does it and thats right. And another couple sentences in there which i think might put my perspective in context, i said a new majority cannot impose its vision only with votes. It must im paraphrasing myself. It must be very sure that its interpretation of the constitution is the right one and that reliance interest, etc. , dont counsel in favor of its overruling, paraphrased. The next sentence was something to the effect of an uncertainty in that regard counsel is in favor of preserving the status quo. So that sentence if its just read alone makes it sound like im arguing for the overthrow of stare decisis in constitutional cases all together. That wasnt the thrust of the article. Quite to the contrary. Thank you very much. And we all welcome the fact that your family is here. It is a beautiful family. Take care, everybody. Thanks, mr. Chairman. Thank you very much. Senator grassley. Dont start the clock yet. He is not ready. For 5 bucks i wont start the clock. Start the clock. Welcome back. Thank you, senator. I want to compliment you for doing a very good job answering our questions. And all about your Decision Making process. Youve been forthright, candid, thoughtful. Youve demonstrated a tremendous command of and respect for the law and constitution. Youve shown us that your judicial method is rigorous but also fair and open minded. Above all, its clear that you understand the appropriate role of a judge, just what were looking for. At least on this side of the aisle. An individual who will interpret the law, not one to make it. You are an outstanding candidate. A couple things before i ask my questions. First, judge, many of my colleagues on the other side have tried to get you to tell us how you will rule on a case. Whether you believe a case was correctly decided or whether you will commit to uphold a specific law. As youve responded, it is not aappropriate for you or any nominee in your position, for any level of the judiciary to make promises or give hints on how you would rule or what you think about a potential issue that may come up. Judicial independence from the legislative and executive branch, those are our Political Branches accountable to the people is a bedrock principle of our constitutional system. Justice ginsburg said it best, a judge is sworn to decide impartially and can offer no forecast or hints because that would show disregard for a particular case. And she also said you cant display disdain or it would display disdain for the entire judicial process. You testified that you have not made any promises to anyone about how you might rule on a case that might come before you. Thats because you know that a judicial nominee should never promise votes in exchange for a president s nomination or a senators support. Moreover, we saw yesterday and to some extent monday democrat strategy continues to be to use scare tactics, distortions and speculation. They are framing you as a real threat to healthcare coverage and especially protections for existing conditions. This is all a charade. Just because of your comment i believe just from one law review article you wrote critiquing chief Justice Roberts reasoning. So its time to get real. This is all just a distraction. This is what we saw monday and tuesday, democrats want to distract from the fact that they dont really care about obamacare, you heard that since democrats started their president ial primaries probably about two years ago. They want governmentrun medicare for all. Thats what you heard in the democrat primary. The changes they seek to the aca move America Closer to a singlepayer system where the government provides or subsidizes healthcare for all americans. Which we know eventually leads to government rationing of healthcare. Democrats want to distract from the fact that they just filibustered a covid relief bill that would have protected preexisting conditions. Next monday well see if theyll vote for a Covid Recovery bill that leader mcconnell has scheduled for a vote next week. Democrats want to distract from the fact that republicans, yes, republicans, have introduced bills to protect americans with preexisting conditions and to bring down drug prices. And if we act, they dont have to worry about you doing away with preexisting conditions in some future case down the road. In fact, given the opportunity to advance bipartisan Prescription Drug pricing reduction act, thats the grassly bill, democrats at schumers command walked away because they wanted Election Year issue. Republicans passed and signed into law bills to end pharmacy gag clauses and to end abusive drug tactics that prevent lowercost generic drugs from coming to market. Democrats want to distract from the fact that President Trump and the administration have taken steps to help lower healthcare costs for americans, including finalizing a rule to allow the importation of Prescription Drugs from canada. And proposing a rule to facilitate the purchase of affordable insulin and epipens for lower income americans. The president has signed and executive order to end surprise billing. Further i and other republicans have been working with the administration to increase transparency in drug prices, to step up enforcement of anticompetitive activity, and prosecution of bad actors in the Healthcare Industry and to improve and expedite Regulatory Approval of drugs to combat covid and other diseases. Here is the bottom line of what weve all heard monday and tuesday. The democrats cry foul over anything that may help americans if it doesnt advance their agenda for medicare for all. And the American People deserve to be reminded of this here and what its all about. Its all about your qualifications to be on the Supreme Court. Its not about healthcare advocacy. Finally, judge, democrats want to distract from the fact that you are eminently qualified for this position youve been nominated for. And they dont like it that you know that the place of the courts is not to rewrite laws as you might see fit there. Here is the bottom line. Ive asked you yesterday if its your agenda to repeal the Affordable Care act. You said quote, unquote, absolutely not. You said youve never made a commitment to anyone on the Affordable Care act or on any matter. Youve never been asked to make such a commitment. And you made very clear you would never make such a commitment. Mr. Chairman, i want to put some letters in the record from state legislative leaders supporting this nominee. Without objection. Now you wont get away with asking some questions on some things that im very interested in. I would like to discuss a law that i brought up with you when we talked for a short period of time oneonone. We didnt discuss it at that time. The false claims act. In 1986 we passed legislation that i drafted to make false claims act an effective tool to combat fraud against federal programs. This law enlisted the help of private citizens to enforce the false claims act through lawsuits. In 2000 the Supreme Court deemed the false claims provisions constitutional. The false claims act has emerged as the governments primary weapon against fraud. Since we restored the law in 1986, false claims actions have recovered 68 billion. With 50 billion coming from whistleblower initiated actions. Congress has remained vigilant to protect the false claims acts from attempts to weaken it in the courts. Have you ever written or spoken publicly about the constitutionality of key tam or any other provisions of the false claims act . And if so, what were the circumstances or the context . Senator grassley, i dont recall ever speaking about the false claims act or the constitutionality of the key tam provisions or any other part of the act. So i cant think of a time when i have. Do you have any preconceived ideas about the false claims act or whistleblower protection act that would impact your ability to impartially decide any cases involving those issues . I do not. Any case involving that act i would approach with an open mind as with any other. Some opponents of the false claims act argue that key tam provisions are unconstitutional under article 2 and 3. Are you familiar with those arguments and if so, do you have an opinion on them . Are you talking about the key tem challenges . I cant express an opinion on them. Theyve been up before the court. Another interest of mine that i probably at 87 years of age wont live long enough to see done but i have discussed cameras in the courtroom and introduced legislation on that over the last 15 years. It is not a very popular subject, judge suter joked he would have to roll over in his dead body before they would put cameras on the Supreme Court. While i can respect that point of view, i totally disagree. Many of us believe that allowing cameras in the courtroom would open the courts to the public and bring about a better understanding of the judiciary. For many years that bill that ive introduced has been called the sunshine in the courtroom act. A bill to give judges the discretion the allow Media Coverage of federal court proceedings. Im also a cosponsor of senator durbins bill to allow cameras in the Supreme Court. I understand that the 7th Circuit Court of appeals where you currently served adopted procedures to allow requests for video recording of oral arguments as well as public release of the recordings. Thats correct. Has your court had any problems with these procedures . What are your views on allowing cameras in the courtroom . If confirmed would you keep an open mind about allowing cameras in the Supreme Court . I would certainly keep an open mind about allowing cameras in the Supreme Court. I always ask people, district, circuit or Supreme Court this question about International Law. I would like to get your views on how and when you would apply International Law to your Decision Making process . Is it ever appropriate to look at that when interpreting the u. S. Constitution . I would never want to say never. Its certainly possible. Generally speaking, so its been applied in the issues with which foreign law has been applied and there is debate about it is when the court is trying or lower court is trying to identify what is the nature of a right thats part of the tradition of the people or that the people what would the people view. In my view the United States constitution is a compact fundamental law of the American People. And so i dont think it would be controlled by the laws passed by other countries because it reflects the fundamental commitments that we as an American People have made. Thank you very much. I reserve my time. Senator durbin. Senator leahy, apologize. Out of sight, out of mind. I forgot you. Okay. Thank you. Can you hear me all right . Yes, sir, loud and clear. Incidentally for those who are watching and think that we may be polarized. I listened to senator grassley said about cameras in the courtroom and of course i agree with him on that and he knows i have supported that. I have also joined with him on a few of the false claim act improvements. So there are many areas in our committee where senators have worked together. I would ask mr. Chairman if i could with unanimous consent a letter from 10 former federal judges who are opposed to the process of this nomination, along with letters of opposition to the nomination of people for the american way and 208 women lawyers be inserted in the record. Without objection. Somebody is going to hand you those letters. I cant quite reach from my room here. Now, judge barrett, it is good to see you again. Again, i commend your children. Im sure this is fascinating but im sure it is a long day. Im sure you probably felt the same way. This is our democracy and it is important we have these questions. Now were being told that no one could possibly know how you would rule in the latest republican led case to overturn the Affordable Care act. We do know you criticized chief Justice Roberts opinion in the sebelius case, you stated roberts pushed the aca beyond its plausible meaning to stand the statute. Then you praised the dissent in king versus burwell. So it seems every time you have weighed in on the legality of the statute, you come to one conclusion. The Affordable Care act is unconstitutional. Over the past two weeks youve provided this committee all of us with some inkling, 100 pages of your writing, your speeches. I may have missed something in that but did you ever write or speak out in defense of the aca . Senator leahy i wanted to make one correction. King versus burwell wasnt a case about whether the Affordable Care act was constitutional or not. That one was purely a question of statutory interpretation, just to make clear about that. But you do praise. In an interview i said i thought the dissent had the better of the statutory interpretation argument. I have a couple of things i guess that maybe might help shed some light on this question. One is that of course in both of those contexts i was speaking as an academic. As i mentioned yesterday, an academic serves a very different function than a judge. So an academic doesnt go through the judicial process, doesnt hear the case or controversy, have the litigants and the briefs and the consultation with colleagues. The writing of an opinion we all understand that. Thats not my question. My question was did you ever write or speak out in defense of the aca, whether as an academic or as a member of the judiciary . Thats a Pretty Simple question, yes or no. No, i have never had occasion to speak on the policy question. Thank you. So every time youve weighed in on it you said the law is unconstitutional. Sorry, i thought you were done. Well, the court under the severability, constitutionality, and you havent written on severability of the aca, have you . I have not. Thank you. And now here is a quote that im sure you are familiar with and comparing and its been used in the last few days. The quote is throwing out preclearance when it has worked and continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet. Have you heard that quote before . I believe thats from the dissent in Shelby County. By Justice Ginsburg, is that correct . I believe so. Actually, it is. She was talking about and warning about striking down section 5 of the Voting Rights act. Now, Shelby County is almost like immediately after Shelby County came down states started making changes. 20 states enacted new restrictions on voting and some of those restrictions have been horrendous. Do you know how many polling places have arbitrarily been closed across the country since the shelby decision . I do not know, senator leahy. Its 1600. Now, following the shelby decision, do you know how many how many voters were purged from voting rolls . I do not know. Roughly 16 million. Thats about three times the population of my state. Africanamericans with felonies are four times more likely to be disenfranchised. Other americans with felony convictions. Nonwhite voters are seven times more likely to wait in line than black voters wait longer in line than white voters. I mention this because this is a picture from the cobb county, georgia. Look at the lines. Africanamerican, look at that line. I suspect neither you nor i have every had to wait in line like that to vote. In fact, the press reported that today those lines can be 10 hours long. People talked about well, are we giving racial entitlement . This is not entitlement for any americans. This is not entitlement, this is turning our back on democracy. This is saying you cant vote. Or make it so difficult for you to vote you cant. Horace county in texas, which has a population many times that of my state has one early voting spot. People have to drive for hours and wait in line for hours to get there. Would you accept the fact or acknowledge the fact that communities of color disproportionately face restrictions and obstacles when they are casting their ballots . Senator, i wasnt aware of the specifics that you were citing to me. If it became relevant in any case that was litigated before me and was presented to me i would, of course, have an open mind about it. Well, i talk about this because i know you have spoke much like former Justice Scalia, who was a friend of mine. But i disagreed with him on many things. He talked about racial entitlement. Its not racial entitlement when blacks have to stand in line for 10 hours to vote. Justice ginsburg, of course, dissented in shelby, she knew what the consequences would be. Its okay for a judge not to close his or her eyes to reality. Now, i asked you last week what a Justice Barrett or even a senator did not follow a Supreme Court decision. You declined and said the question may come before you. I then asked if the Supreme Court, have the final word. You stated the Supreme Court would have the final court as far as the lower courts are concerned. And that surprised me and it concerned me. Ill tell you why. I asked Justice Gorsuch and i asked Justice Kavanaugh those questions. I asked them what happens and they made it clear that a president cannot refuse to comply with a court order and the Supreme Courts word is the final word on that matter. Justice gorsuch and Justice Kavanaugh said that. So i would ask you this. Do you agree that a president must follow the court order and the Supreme Courts word is final . Or is the Supreme Courts word only final as far as the lower courts are concerned . Senator leahy, im glad to have the opportunity to clarify from our conversation. First, i know that both justices gorsuch and kavanaugh said that no man is above the law. And i agree with that. But i conversed with senator lee yesterday about federalist 78, which says that courts have Neither Force nor will. In other words, we cant do anything to enforce our own judgments and so what i meant in the conversation with you is that as a matter of law, the Supreme Court may have the final word, but the Supreme Court lacks control over what happens after that. The Supreme Court and any federal court has no power, no force, and no will. So it relies on the other branches to react to its judgments accordingly. I remember as a young law student having lunch, our Honor Society at georgetown had lunch with the members of the Supreme Court. I sat with justice hugo black. He told me what happened with brown versus board of education and the court knew it was going to be a very, very tough case. And they waited until they had a unanimous opinion because they knew that the president would have to and the congress would have to enforce their law. So let me ask you this. Of course the Supreme Court has no army, they have no force. But they do have a force of law. And is a president who refuses to comply with a court order a threat to our constitutional system of checks and balances . Senator leahy, i think the example of brown is a perfect one in this instance. The Supreme Court in brown held that segregation violated the equal protection clause. That was the law. But as you know, there was resistance to that decision. And so it wasnt until the National Guard came in and forced a governor to allow desegregation that it could happen. The Supreme Court couldnt do so itself. I understand that. But they made the order and could a president if a president refused to follow what they said could that be a threat to our constitutional form of government . Well, as i said, the Supreme Court cant control whether or not the president obeys. Abraham lincoln disobeyed an order of the court in the civil war. It lacks control how the Political Branches respond to it. Let me ask you a specific. President trump claims he has an absolute right to pardon himself. Now, for 200 years the Supreme Court has recognized common law principle that nobody can be a judge in their own case. I had to go way back and reread calder versus bull to see that. But would you agree, first, that nobody is above the law, not the president , not you, not me, is that correct . I agree no one is above the law. And does a president have an absolute right to pardon himself for a crime . We heard this question after president nixons impeachment. Senator leahy, so far as i know that question has never been litigated. That question has never arisen. That question may or may not arise. But it is one that calls for legal analysis of what the scope of the pardon power is. So because it would be owe pining on an open question when i havent gone through the judicial process to decide it, it is not one in which i can offer a view. Okay. So you were willing to say no person, not you, not me, not a president is above the law. I find your answer somewhat incompatible but those are your answers. You have a right to say what you want. Now you are an originalist. Can you explain why the framers included the foreign and domestic clause in the constitution . I think i could speak generally to what is the well accepted view that the foreign emoluments clause that is designed to prevent foreign influences in government affairs. It is one of the anticorruption clause of the constitution, isnt it . Im sorry, could you repeat that question. It is sort of what you would say its the anticorruption clause in the constitution. I dont know if i would characterize it as an anticorruption clause. I would characterize it just as i did which one from its very text you can see is designed to prevent Foreign Countries from having influence. I was thinking of what the Constitutional Convention governor Edmund Randolph said, the clause was thought proper to prohibit anyone in office from receiving any emoluments from foreign states. Now we find that 200 companies and foreign governments have patronizeed trump properties. At the same time they were getting benefits from him and the administration, personal use of his presidency, 73 million for his properties abroad. And originalists as you are, do you think these companies and foreign governments would have fallen within the framers zone of concern in writing the emolument clause . Senator, the emoluments clause, it is under litigation. There was a 4th circuit case that recently involves this question. As a matter thats being litigated it is very clear i will be one i cant express on opinion on. It could come before me. I found it interesting what you have written about stare decisis and it seems that you are willing to depart from it and as a justice i suppose you can do what you want. In the june medical services chief Justice Roberts joined the majority, struck down a louisiana law restricting access to Reproductive Services even though he had dissented in a previous case striking down a very similar texas law. He said a legal doctrine of stare decisis requires this absent special circumstances the treat cases alike. So having been on the losing side on the first one, he took that position in that case. Do you agree that he demonstrated a commitment to stare decisis in this case . Well, senator, no justice that im aware of throughout history has ever maintained the position that overruling a case is never appropriate. As you probably know, there is a Supreme Court case that said that states could criminalize Sexual Conduct between same sex couples and lawrence versus texas overruled that case. Another case was precedent and brown versus the board of education overruled it. The Supreme Court has always said that in some cases overruling precedent is the right course for the court to take. I would urge you to read what chief Justice Roberts said at the opening of the africanamerican museum in the smithsonian about following precedent. I realize my time is up. I will submit a question to you, because i wonder what restrictions you see the president s authority under executive order 12333 to conduct surveillance activities that havent been authorized by congress. I ask that because senator lee and i and others have had a lot of legislation on surveillance and now the question whether it is being ignored. So i hope you take it as a serious question and answer it for the committee. Thank you, senator leahy. Well make sure that happens. Senator cornyn. I ask unanimous consent that three letters i have in my hand be made part of the record please. Without objection. Good morning, judge. Good morning, senator. I would like to wax philosophical with you for a few minutes and you dont need your notepad today. I just think there has been so much discussion about the role of judges and the role of the Political Branches. I think maybe its worth going back to first principles. And to me the most important first principle is in the declaration of independence where it says we hold these truths to be selfevident that all men are created equal, theyre endowed by their creator with certain unailable rights. Among these are life, liberty, and the pursuit of happiness. That to secure these rights governments are instituted among men and here is the most important part i want to emphasize. Deriving their just powers from the consent of the governed. Now you and i talked a little bit about consent of the governed as being the foundation of the legitimacy of government action. Do you agree with that . I do agree with that. And does that inform your philosophy when it comes to the appropriate role of judges and a Political Branches like the congress . Yes, it does. I had the great privilege of serving on the state court bench for 13 years. So when i came to congress i had never served in the legislature before. And so it was quite an eye opening experience for me. For example, after one vote on the senate floor, after the vote was over, one senator got to the microphone and said now for a little legislative history. That was kind of shocking to me but you understand where im getting at and one reason i appreciate your approach to statutory interpretation and emphasis on the text rather than legislative history, this is a way for somebody who lost the vote to come in and try to then tilt the scales of justice in their favor by adding ex parte legislative history. And then imagine my shock when i served, as i do now, on the finance committee when we mark up legislation in the finance committee, we dont actually get to look at legislative text. Its kind of surreal. They call it a notional markup. We end up voting on sort of a notion or concept and then somebody in the legislative counsels office writes up the text. Very strange. And then there is this issue of i know in the judiciary and Legal Profession there has been a moved toward clear language. You have to unlearn some of the lessons you learnedinlaw school. Particularly writing in law reviews and the like where youre rewarded for impenetrable language. Where you use latin phrases and things like that. The Plain Language Movement in the Legal Profession strikes me as an Important Movement and i yearn for those days when perhaps congress can embrace that so we can speak more clearly so more people can understand and not delegate our legislative responsibilities to staff. But i also was struck by the fact that one of the reasons why cases get litigated is because of the failure of the congress to build consensus for legislation. And to me the Affordable Care act is one example of that. When either side pushes through a partisan piece of legislation, it is not realistic to expect that the fight will be over. It will just move to a different forum. It will move to the courts. Thats not what happened on things like medicare and social security. There was built a broad bipartisan consensus. Members of Congress Actually did the hard work to find that consensus so that they didnt have to hand it off to the judiciary. Unfortunately i think weve seen the tendency in recent years to do exactly that, where congress as abdicated its responsibilities figuratively, pulled the pin on a hand grenade and hand it to the judiciary and say you figure it out. And maybe, just maybe, thats one reason why these judicial confirmation hearings have become so contentious. People actually see the judiciary as the ultimate policymaker. And as was quoted Justice Scalia talking about the value judgments of judges versus those of the citizenry or elected representatives and he said that there is no reason to think that the value judgments of the judiciary are any better than those of the citizens that ultimately in whom resides the ultimate legitimacy and political power. And, of course, the most fundamental difference, i guess, between the job that you currently hold and the one that you will hold on the Supreme Court is the notion of accountability. As a judge, you serve for lifetime tenure, correct . Correct. You dont have to stand for election. No. Bill you dont have to raise money. No. You dont have to consult polls or focus groups. No. How in the world do you decide a case if you dont consult with public opinion, polls, focus groups, or the like . Well, the reason we have life tenure as federal judges is to be insulated from the pressure that such things like focus groups, polls or public opinion, the pressure it might apply for a court to decide a case particular way or the other. Thats why we decide it according to the text. Well, and there are various rules of the road so to speak for how the judiciary approaches cases, right . Correct. Perhaps the most fundamental difference is rather than making broad policy pronouncements, you decide cases, correct . That is correct. In fact, im struck by New York University article by Justice Ginsburg in i forgot what year it is where she talks about roe v. Wade and she talks about what she called the breathtaking decision versus the courts more cautious dispositions. She said suppose the court had stopped after rightly declaring unconstitutional a portion of the law and had not gone on, as it did in roe, to fashion a regime blanketing the subject. Rules would there have been a 20year controversy . We have witnessed reflected most recently in the Supreme Courts splintered decision in planned parenthood versus casey. Might it have served to reduce rather than the fuel controversy . I think what she is saying is when the courts step in and basically take over by stating a constitutional rule, it really prevents the very people who are elected by voters from making policy, correct . Correct. And there are a number of other things other than the requirement of a case or controversy that keep the judiciary in its appropriate lane. Things like standing requirement yes. What is standing . Standing means that you cant just come to court say because you dislike senator grahams feet all painable. Standing means you actually have to have suffered what the law calls a concrete injury. It has to have affected you in some way. So that means that there are real litigants with a live controversy before the court. People cant come to court to air policy disagreements only. Then there is a requirement of ripeness. What is that . It means there has to be a live controversy. You cant run to the courthouse door and file a lawsuit until it is ripe. Which means the injury i was talking about has come to fruition and come to pass. And, of course, by the time you see it on the Circuit Court, the case has already had to have been tried by a trial court, correct . That is correct. And then there is a record, right . Yes. And what encompasses a record that the trial court prepares that you review as an appellate judge . There will be factual parts of the record. If there was a trial there will be very lengthy transcript of that trial. A District Court makes a number of legal rulings in the course of a case. So the court may have ruled on say a motion to dismiss and whether the law even permitted this whether the law gave the plaintiff is valid claim. The court may have ruled on a motion for Summary Judgment which means thats an evaluation of whether the plaintiff or the defendant could win the case without even going through a full trial because the law was clear enough. So there are many things along the way. There are evidentiary ruling, factual record that develops and in some instances its quite long. Is an appellate judge on the 7th circuit you cant go outside the record, can you . The record cant be expanded on appeal. Thats true in the Supreme Court as well . Yes. And so all of these rules of the road ill call them are things like the case or controversy requirement, rightness, standing, being confined to a record that is then the sole focus of an appellate review, are all those sort of indications of how the judicial Decision Making process is different from the legislative process . Yes. And it can take years for a case to wind itself through that process. As opposed to policymakers, they dont have to wait on real parties and real disputes and the party get to saip the case their way and what legal issues theyll contest and that narrows what the court can do. Policymakers, if you had enough agreement to pass something, you could just do it in one day. Just enact a law, enact a policy and thats definitely not how judicial decisioning works. I know that you have followed the same rule as Justice Ginsburg in not expressing opinions on cases that might come before the court. Is this another practical reason why you cant predict how you will rule in the future, because you dont know what the facts of that case may be . You dont know what the issues in controversy might be. So how in the world could you sit here and basically tell us about what your policy will be without knowing all of that . I couldnt. And i think when Justice Ginsburg said it would show disregard for the judicial process and disregard for litigants, what she was getting at it would signal for litigants. All the briefs and stuff you file in a case doesnt matter. Judges have a gut reaction, they know what they think and this is all just going through the motions. But thats not how the judicial process should work. Or does work. There is no reason to believe a judges gut reaction is any better than any other american citizens reaction, is there . No. And the judicial process i described a little bit yesterday, a judge needs to have an open mind every step of the way. So as i said, ive changed my mind at oral argument even after reading the briefs. Ive changed my mind at conference after consulting with my colleagues. If i was to say how i thought i would resolve a case because of how i saw the issue it would be shortcircuiting the who process to have an open mind and be open the persuasion. I dont see any of the big blowups or charts here today about individuals that were the subject of the stories that our democratic friends were telling yesterday. Maybe well see them later. But to me the but the idea that some case that you might decide in the future, that you have not had a chance to go through this analysis of and predicting how you might rule in the case, is that even possible . Its not possible because i dont know whether my mind could be changed at some step along the way. And if i did it i think like yesterday i would be a legal pundit commenting on things in realtime and i dont think anyone wants judges to function that way. They want judges to go through the process, take things seriously and do a lot of research and writing and keep an open mind. And where in the constitution does it authorize a judge to be a legal pundit and make policy pronouncements separated from all of these requirements . Well, article 3 prohibits it insofar as article 3 the court has said prohibits federal courts from issuing what are called advisory opinions. That means that when there is no real case in front of you, no real case or controversy, then you cant just offer an advisory opinion to express your view of the law. So its not fair, is it, to suggest that by confirming you to this position you are somehow going to adversely impact the lives of these individuals . Well, as i said yesterday, what i can say is that i have certainly no agenda. Im not on a mission. Im not hostile to the aca at all and if i were on the court and if a case involving the aca came before me i would approach it with an open mind just like i do every case and go through the process that weve just discussed. And again referring back to what Justice Ginsburg said in this New York University law very rue articles if judges restrict themselves to deciding cases or controversies as opposed to making broad policy announcements and displacing legitimate dispute, debate, negotiation and legislation, does that encourage more litigation and dissension or does it resolve it . Well, without commenting on what Justice Ginsburg said about roe v. Wade in particular. Im not talking about that. Just generally speaking. As a general matter the case or controversy requirement insofar as it ties the court to the particular litigants and to the particular issue presented in the case. In fact, the Supreme Court has a rule that it will not consider questions outside of the question presented in the case absent unusual circumstances. So that means the court cant reach out and decide other issues that might be in the case if it didnt grant cert on them. Court limiting itself to the issues actually presented is one way that the court tries to respect this constraints on its power. It is only actually resolving the cases right in front of it. Getting back to the declaration of independence and the source of government legitimacy, these arrangements are not made to benefit you or the courts or to benefit us. They are to benefit the American People by making sure that they are the ones who are the source of political power. Do you agree with that . All provisions in the constitution are there to benefit the people. And so if the court rules on a statute, we can change the statute but the court says something is unconstitutional, you can amend the constitution to change that ruling. The people could do that, right . Yes, they could. So the American People are the final word. Yes. Mr. Mr. Chairman, yield. Thanks, mr. Chairman. Judge barrett. Good to see you again. Good morning. You are making history. Are you the first i wish the senator from idaho could hear this, the first nominee for a vacancy on the Supreme Court to be considered after july 1st of the Election Year. In fact, you are the first nominee to ever be considered in the midst of an election. I dont know if that has ever happened before. It certainly hasnt in modern history. The obvious question he is why. Whats the hurry . Why count we wait until the end of november, december or january after leaving a vacancy on the court for 10 months after scalias passing. There is a political agenda here. Whether you are privy it to, part of it, no withstanding it has to do with the Affordable Care act. November 10th is the absolute date they have to fill the vacancy if the president and those who support him and those who support the republican platform are going to keep their promise to end the Affordable Care act. They need that ninth justice and thats why it has to be hurried. Unfortunately that is the cloud, the orange cloud over your nomination. As it comes before us here in the Senate Judiciary committee. And it raises many questions. I would like to confine my first part of these questions to whats going on across america as we meet here today. There is an election going on. People are trying to vote. And there are a lot of issues out there that are being debated and somewhat resolved or unresolved every single day. The president continues to lie about paper ballots saying that they are fraudulent. People shouldnt use them. There are still long lines for people who just want to exercise their right to vote. The governed who want to give their consent, senator cornyn. A battle royal over the Postal Service and whether it will be imme indicated to stop ballots from being delivered. One ballot collection box in texas for four Million People . Its an effort to make it difficult to vote. Even for those who are really entitled. Historically the Republican Party has started using a tactic of discouraging voters. Making it more difficult, reducing the period of time that people can vote early. Requiring i. D. S even if there is no evidence of fraud, purging the roles of names. This is all going on. I want to confine my questions at the outset here on the question of voting. Let me start with what many people read this morning and i did which was a summary of one of the exchanges yesterday here in the committee. Senator feinstein who said President Trump made claims of voter fraud and suggested he wanted to delay the upcoming election. Senator feinstein asked you does the constitution give the president of the United States the authority listen closely to what she asked you, to unilaterally delay a general election under any circumstances, does federal law . Your answer, well, senator, if that question ever came before me i would need to hear arguments from the litigants, read briefs and consult my law clerks, talk to my colleagues, go through the opinion writing process. You went on to say you didnt want to give off the cuff answers like a pundit but rather approach matters with an open mind. Is that still your response . Senator, ive given that response to every hypothetical that ive been asked in the hearings and as i said yesterday, i do that regardless whether its easy or hard. I dont do that to try whether the question would be easy or hard, i dont try to do that to signal it but that it would be inappropriate for me to make a comment. I dont think ive answered any legal hype thet calls in keeping with the Justice Ginsburg rule. What troubles me is this you style yourself originalist. You go right to the words and try to understands the words in their original meaning. So if i change senator feinsteins question and didnt ask you whether the president has the authority to unilaterally delay a general election. Asked you instead does the president have the authority to unilaterally deny the right to vote to any person based on their race . What would your answer be . There are many laws in effect, including the equal protection clause, which prohibits discrimination on the basis of race. The 15th amendment proper depths the right to vote against discrime based on race. There is a principle called external constraints in constitutional law. Even if one evaluates what the authority a branch might have to act, their external constraints that press in from other parts of the constitution. Here it would be the 14th and 15th amendment. Of course it would. The 15th amendment, the right of citizens of the United States to vote shall not be denied or abridgeed by the or any state on account of race. Thats clear texas t text as i see it. Whether asked if the president has the right to deny that right to vote for a person based on race or gender are you saying you cant answer that question . Senator, i just referenced the 14th and 15th amendment the same one you repeated back to me that do prohibit discrimination on the basis of race and voting. So as i said, i dont know how else i can say it. The constitution contains provisions that prohibit discrimination on the basis of race and voting. Whether a president can unilaterally deny you cant answer yes or no youve asked a couple different questions about what the president might be able to unilaterally do. I cant say anything more than i wont answer hype thet calls. It strains originalists if the clear wording of the constitution establishes a right and you will not acknowledge it. Senator, it would strain the canons of conduct which dont permit me to offer off the cuff reactions any decisions outside the Decision Making process and strain article 3 which i cant and as Justice Ginsburg said it would display disregard for the whole judicial process. Lets take it to the case weve discussed before kanter versus barr. Your 37 page dissent in this case. And yesterday junior senator from missouri in an attempt to rehabilitate the witness asked you, you never say that the right to vote is somewhat secondary or less than any other right, is that fair to say . And you answered yes, that is fair to say. I never said that. I have read and reread this. Im not ready for a question on the final. Ive read and reread your dissent on this and read to you what you wrote on this very question asked by the senator from missouri. In some i they we need to establish what this case is about for those who may not know. Ricky kanter was a con man, lived in wisconsin. He manufactured some kind of shoe insert, a pad and tried to sell it to people who had diabetes or some foot problems. He wanted medicare to say it was approved. They didnt. He sold it anyway and made that representation. When it was all over it came crashing around him. Cheated medicare out of 375,000 and found guilty on a count of mail fraud, paid 300,000 in penalties and fines. He paid out 27 million in a civil settlement and then spent a year in federal prison. So this was not some run of the mill mystery onto, a con artist. He said its unfair. I served my year in prison and i want the buy a gun and the law says i cant buy a gun. Even the heller decision Justice Scalia said that felonies and Mental Illness could continue to disqualify a person from buying a gun. Two out of three judges said thats right. You took a look at it and reached the opposite conclusion and did Extensive Research and delving into history whether or not violent felonies should be distinguished from regular felonies and concluded that you believed a person who has just been found guilty or convict evidence of a felony should not be disqualified from the Second Amendment rights. That should be confined to those who were dangerous, guilty of a violent felony. Here is what you said. Go to the question that was asked by the senator from missouri. Your words. In sum, the Available Evidence suggests that the right to arms differs from rights that depend on civic virtue for enjoyment. The Second Amendment confers an individual right with the right of selfdefense and not limited to participation. By the very terms of the civic rights argument, then, the right to arms would have been treated differently than things like the right to vote or sit on juries. So here is what it boils down to. After heller, after the decision, after scalias statement, you concluded that any felony can take away your right to vote but only a violent felony can take away your right to purchase an ak47. Why . Senator, with respect thats distorting my position. What i said in that case, which is what heller said and which is conventional in all discussions of this to my knowledge is that the right to vote is fundamental. However, it is an individual fundamental right that we possess. We possess it as part of our Civic Responsibility for the common good. The same thing is true, for example, of jury service. Whereas individual rights and this is again a distinct thats drawn in case law, individual rights benefit more the individual and the entire dispute in heller was that the majority thought that the Second Amendment was an individual right and the defense thought it was one that was a civic right. A right that people possessed but they possessed for the benefit of society by participation in the militia. It is a distortion of the case to say that i ever said that voting is a second class right. Thats simply not what that passage means. The very terms of the civic rights argument then, the right to arms, would have been treated differently like the right to vote. Lets get down to the bottom line here. Heller did establish the individual right. When you finished what your dissent. If you are guilty of a felony that is not violent, you can lose your right to vote but you cant lose your right to buy a gun. Am i wrong . Kanter had nothing to do with the right to vote. The point that i was making in that passage the 14th amendment actually expressly allows for states to deprive felons of the right to vote. Sl was no similar language in the Second Amendment. I have never expressed an opinion about the scope of a legislature tour ace authority to tay aways felon Voting Rights. There was a history of such provision in state constitutions and in the federal constitution. But i did not intend and if my words communicated that it was a miscommunication. I have never denigrated the right to vote. I think it was at best a serious miscommunication. I would like to read to you in this very room in 2005 an exchange that took place between senator kennedy and judge roberts. He said lets start with the Voting Rights act. Most americans think the right to vote is among the most important tools that they have to participate in our democracy. You do agree, dont you, judge roberts, that the right to vote is a fundamental constitutional right . Judge roberts says it is preservative. I think of all other rights. Without access to the ballot box, people are not in the position to protect any other rights that are important to them. And so i think its one, as you said, the most precious rights we have as americans. Do you understand why i read your lengthy dissent here where somehow or another you could say to ricky kanter sorry, you cant vote anymore but buy any guns you wish. We treat those rights differently. Can you say why it would be troubling based on what roberts said . I dont because ive expressly testified here that i think voting is a fundamental right. I didnt say to the contrary in that dissent. Well, i read it otherwise and ive read it and reread it. I wont get that right on your final but i will tell you from the way i see your language it is explicit. You have two categories of rights. One thats individual and another that is based on collective action as in juries, as in voting as a group of the populous and you made a distinction there that i think is hard to understand, difficult to explain and inconsistent with what Justice Roberts told us at this point. I would like to move on to another leave it open, i want you to have the last word. Im happy to answer whatever questions you have. Let me go to the poster behind me and introduce you to another family. This week i shared two stories of whats at stake with your nomination ahead of the november 10 oral arguments in california versus texas which will decide the future of the Affordable Care act. This is a family included in it is jared wray of buffalo grove, illinois on the right. Earlier this year jared, 20 years old, began experiencing serious headaches. After a month of suffering, he asked his father, mike, to take him to the emergency room. Ct scan revealed a mass on his brain immediately transported to evanston hospital for surgery. Weeks later they learned the devastating news, he was diagnosed with a cancerous brain tumor. It is one were familiar with in the senate. Senator mccain suffered from a similar situation. Post surgery he began an aggressive six week radiation protocol. Currently on first round of eight chemotherapy treatments in chicago. His treatment costs have added up to 700,000 and continue. Fortunately the aca permits jared to remain covered by his moms Health Insurance until the age of 26. That law also insures no lifetime limits on her policy. So that they can continue to give jared the treatment he wanted and needs. When sharing her sons story his mom said any parent would be shocked and terrified in the situation. If the aca is abolished and my employer declines to it makes jared uninsurable. He will clearly have a preexisting condition. Jareds father added. If it were not for the Affordable Care act i wouldnt be insured. A huge benefit. Judge last week in your prepared testimony you said the policy decisions and value judgments of government must be made by Political Branches elected by and accountable to the people. The public should not expect courts to do so and the courts should not try. Well thankfully, judge, the Political Branch is elected by people passed and enacted the Affordable Care act. The problem is now that the republicans are doing everything they can to take away this protection. And they cant do it through elected officials. They tried. Over and over and over in the house, and in the senate. I mentioned senator mccain earlier in this statement. I will never forget it, neither will fly of us on the floor that night when he walked through the doors and voted no and saving Health Insurance for 23 million americans and protections for 100 million or more. They couldnt repeal the Affordable Act in congress. Now theyve taken it to the Supreme Court. It isnt a casual decision. They decided instead of defending an existing law they would attack it along with the Republican Attorney general who gathered forward this purpose. They have reason to believe theyll be successful. Right wing judicial activists have stepped in to overtoourn. Activist judging including rolling back Campaign Finance laws in Citizens United and Voting Rights protections away in Shelby County. The choice of these activists is in supposedly neutral idea of textualism and originalism. Their own judgment for the elected branches and strike down and restrict laws disfafshd by powerful special interests. President trump wants a nominee on the court to strike that the aca. You have said you have not made any agreements or statements to the con traefrmently tell you it is a cloud over your nomination. He has overand over again nominated other such advocates of originalism to carry out his political purposes. Im afraid of the impact of that repeal on people like jared. So weve been told you are following the ginsburg rule. No hints, no previews, no forecast. During your confirmation hearing Justice Ginsburg did answer questions such as the right to choose. Yesterday you had one notable and selected departure from your interpretation of the ginsburg rule. When it comes to california versus texas, the republican khaejed the Affordable Care act you repeatedly claimed the deciding question of the case is severability not the individual mandate. Thats a legal opinion. But the court will only reach the severability question if it first finds the eliminating the penalty for the individual mandate rendered the individual mandate unconstitutional. Isnt that right . Senator, what i meant by that is that even if the mandate is unconstitutional, severability would if it is serveable the statute would stand and so if the mandate is constitutional then yes, the law would stand. But i say the emphasis and ive gotten a lot of questions about severability for this reason and much of the commentary in the legal news about this is focused on severability because it means that whatever the holding is on the mandate, the severability question is the one that would be determinative even if the mandate were held unconstitutional. Its a descriptive. I didnt say how i would rule on severability or whether i would interpret the enter owed out provision to be a penalty or a tax. The second part. Youve already addressed that havent you penalty tax. No, i havent. The writing that ive done before that i assume you are referring to addressed a different position provision that wasnt zeroed out. This is now an amended provision so it is a different provision before the court. You are on record criticizing chief roberts opinion that the mandate is constitutional, havent you . I am on record saying that i thought that the majority opinion was a less plausible interpretation of the statute than that of the dissent. Again, that was an academic writing, number one. Number two on different issues than those presented in california versus texas and number tloo e you are suggesting i have hostility to the aca. I assure you that i dont. I think senator durbin something you and i agree on here, judicial activism is bad from either side and no matter what somebodys policy preferences are about the aca, i completely agree with you they shouldnt be trying to undermine the policy that congress enacted. So you and i agree on that and i embrace that view of a judges rule wholeheartedly. Thanks, judge barrett. Well do senator lee, whitehouse, cruz and break for lunch. I would like to submit to the record a letter from the American Legislative Exchange counsel. Without objection. Judge barrett, i want the talk about religious free he dom for a moment. As i mentioned the other day we share something in common on this, an enthusiasm for religious freedom. I am a member of the church of jesus christ of latter day saints and on october 27th, 1838 the governor of missouri ordered us exterminated. I assume he had his reason. Im sure were her it wasnt until the 70s until missouri lifted that ban. Im sure josh hawley would have lifted it for us had it not been lifted by that. Religious liberty has interesting to me for that reason and also just as a lawyer. My late father who was also a lawyer worked on and advised Congress Regarding the religious freedom restoration act and my long time professional mentor and former boss was someone who i worked with in establishing a first of its kind religious Institutions Practice Group a couple decades ago. Catholics like members of my faith have also been subjected to religious persecution from time to time. And in many cases were directly targeted through blaine amendments. Provisions worked into a number of state constitutions for in many cases blatantly anticatholic purposes. The blaine amendments had as their purpose restricting of public funds going to certain religious institutions including schools. Thankfully earlier this year the Supreme Court in a case struck down struck another blow against blaine amendments by reinforcing the earlier decision in the Trinity Lutheran case. Would you discuss briefly with us the Supreme Courts recent jurisprudence on this issue on blaine amendments and how they intersect with religious freedom . Sure. The Supreme Courts recent decisions get at the principle that while we have to be careful about the establishment clause, right . A line of cases saying a state or federal government clearly cant establish a church. So we have a line of cases about what that means. But at the same time, this case being example the court has been clear that religious institutions cant be discriminated again or excluded from Public Programs simply because they are religious. Now during your time on the 7th circuit you have been able to handle some cases involving religious freedom issues. For example, you joined a majority opinion in a caseup holding the freedom of a jewish Religious School and its own discretion to hire teachers at its school. That ruling was challenged before the u. S. Supreme court but the Supreme Court denied cert in that case. Another case ended up essentially adopting a position similar to that which you joined in the case i just mentioned in the our lady of guadalupe case. Can you talk to us a little bit about that opinion and about the seventh circuit opinion and its application of the ministerial exemption . The ministerial exemption the court described it. It gives religious real institutions being able to high teachers who are ministers. What this gets at or what it requires courts to do is decide who is a minister. On the one hand there may be some that might be more obvious questions. Someone who teaches religion, religion teachers. Those who follow more in the heartland. It gets a little more difficult if you have a Religious School like the Jewish School or the Catholic School in our lady of guadalupe who has a teacher that is teaching math and then the courts have to come up with a test to decide whether such a person is a minister or not. And what our lady of guadalupe said its a multifactor test where no one factor is determinative. It cant be determinative just that the teacher teaches math rather than religion, for example in one case the teacher spent time teaching jewish prayers and saying jewish prayers with the class and the school considered it part of the teachers duty to form the students to teach them about jewish prayers and form them in that tradition. Even though she taught other matters in the curriculum, it viewed it as part of her job at the school in the minister. Our lady of guadalupe gives a lot of weight to the schools characterization whether it was a minister or not. Not to encourage discrimination but to protect religious freedom so at a Catholic School the teacher may teach math but prays with the students in the morning and attends mass with them during the week and considered by the school saying in our lady of guadalupe also forming children in the faith. It is really about what the scope of that ministerial exception is and how you identify if someone is a minister. When you came in front of this committee in 2017 talking about just over three years ago for your confirmation to the u. S. Court of appeals for the 7th circuit you said if there is ever a conflict between a judges personal conviction and that judges duty under the rule of law it is never permissible for that judge to follow their personal convictions in the decision of the case, rather than what the law requires. You still stand by that statement . I do. Ive got some colleagues on the other side of the aisle who seem to want to focus on statements made in your personal capacity and in your capacity as a private citizen and a member of your faith as opposed to addressing actual cases dealing with abortion. I have a hunch thatth is your record on the 7th circuit shows you are able to set aside your personal convictions. Thats what youve done when theyve conflicted with your duty under the rule of law. In price versus chicago, for example, i assume you remember that case. It is a case in which you have joined a 7th Circuit Panel opinion affirming the legality of a chicago buffer zone law which places limits on prolife activists as they are demonstrating exercising their First Amendment rights outside of abortion clinics. I assume that was the case because there was binding Supreme Court precedent on the abortion buffer zone issue. Is that right or do you want to tell me a little bit about your reasoning in that case . So the panel held that the issue was squarely controlled by the Supreme Courts decision in hill versus colorado. There was binding precedent on point and so you followed that precedent. And you did so as a jurist rather than following whatever personal thought might have guided you or other members of the panel. In planned parenthood of indiana and kentucky versus the commissioner of Indiana State Department of health you joined a dissent written by judge Frank Easterbrook and the Supreme Court later agreed with you in a 72 decision with respect to the indiana law requiring fetal remains to be buried or cremated following an abortion. The position that garners a 7 vote majority on the Supreme Court these days, at least a 72 decision that includes Justice Breyer and Justice Kagan does not seem very radical to me. Do you disagree . Am i missing something about that . The Supreme Court summarily reversed without argument and briefing the panels holding in that case fetal remains portion of the statute wasnt rational. I will note for the record here i dont think ive ever heard anyone characterize as a radical act of conservative activism a 72 decision joined by Justice Kagan and Justice Breyer. Judge barrett, in addition to being able to set aside your personal convictions when deciding a case you have also demonstrated the ability to expertly determine what the law requires. This stems i believe from fundamental and i believe correct view that a jurist, a judge needs to start from the premise that the law provides an answer. The fact that legal disputes can be difficult and reasonable minds might disagree doesnt excuse the judge in believing that there is a right answer. And you seem to follow with that and it shows up in your work in a way that reflects very well on you. The Congressional Research service conducted a review of your cases from the u. S. Court of appeals from the seventh circuit and determined that your decisions and this is a quote, quote, evince casebycase consideration of the relevant law and facts without any clear overarching trend toward either expanding or narrowing Fourth Amendment protections, close quote. This is exactly what i would expect from a textualist originalist on an issue that, like the Fourth Amendment, can actually be politically charged. With a textualist and originalist somebody who doesnt appear to be a partisan and comes down on both sides. On the government side and the nongovernment side. This would also account for a variety of outcomes in your cases because are you not aiming for an overarching trend in outcomes. Your analysis seems sometimes to come out in favor of a defendant and sometimes in favor of the government. I find your dissents and your concurring opinions in Panel Decisions to demonstrate this commitment to following the law as it is written rather than on the basis of some external objective. Can you tell us why you felt the need to dissent in a case of schmidt versus foster . Yes, schmidt versus foster involved a state court case. It came up through the wisconsin courts. In the case there was a question of whether the defendant could raise a defense under Wisconsin Law called adequate provocation for having murdered his wife. The case wound its way through the wisconsin courts and the defendant argued that an ex parte examination of the judge at which his counsel was present but not permitted to speak did not violate the sixth amendment because in that case, the defendant didnt want to preview his case for the prosecutor and so he didnt want the prosecutor in the room. So the judge said well, i will allow that but only if your attorney doesnt speak because if were not going to preview your case for the prosecution and not permit the prosecutor to be here thats how he was going to do it. The judge proceeded to ask the defendant questions to decide whether he could make an adequate provocation defense and concluded he could not. In that case the wisconsin courts held that this proceeding did not violate the defendants right to counsel. Telling his counsel that he couldnt speak. It came to my court under 2254, the state habeas statute permitting collateral review of state convictions. It requires very heavy deference to state courts. You can only disturb a state court holding, for example, on a matter of law, determination on a matter of law if no reasonable jurist could reach that conclusion, you know where it has to be in conflict with clearlyestablished Supreme Court law, and in that case i made clear that it wasnt up to us to decide whether we saw it as an original matter, whether that violated the sixth amendment because as the Panel Majority which then become a dissent when the case pent on bonk said it was an unprecedented kind of hearing. If it was unprecedented meant that there was no clearlyestablished Supreme Court law on point. So the decision in that case was driven by federalism and by the statutory instruction that federal courts give deference to state courts. Thank you. In another case United States versus wilson i believe that was a case in which you agreed with the majority in concluding that the officers acted with reasonable suspicion based on the surkim circumstances of the case and flight by the individual from the scene. But you wrote separately. Tell us why you wrote separately in that case. That case if i have the case correctly i have been almost 600 cases but i think i know the case that are you talking about. I think that was a case where police had a tip about some criminal activity and there were a group of men in a park. The police approached the park and then they went up to talk to one of the men at the park because they noticed a bulge in his pocket. He was wearing gym shorts or athletic shorts that showed a bulge. And the police approached the man and he fled. And under Supreme Court case law the determinative question for seizure is whether the person fled and then was detained and seized by the police. The other way that that could have been justified is if as a matter of a stop is the case the police had reasonable suspicion to approach him because they saw the bulge in his pocket. I wrote separately because i thought that the policemens basis for stopping him if this had been a terry stop based on reasonable suspicion was questionable because they really had an anonymous people. The people in the park didnt match the description given in the anonymous tip. They saw a bulge in the pocket. If he had not fled the case should have just talked about the flight. If he had not fled i was pretty dubious that that would have been a justified stop. I admire your decision to write separately in that case. It shows real courage and moral and judicial leadership to speak out and write separately when the occasion requires it. You did so here with nothing to gain from it. You did so because it was important to point that out under the law and i respect that a lot. In the couple minutes we have left i wanted to ask you more broadly about something ive noticed in reviewing letters and other materials weve received in response to your nomination. Ive noticed there is a common theme among your law clerks and students. They feel like you see them as individuals and they feel mentored and taught by you. Tell us a little bit about that. I would love to hear, for example, are how you go about deciding who to hire as your law clerks and how you mentor them as they go through their year studying with you. So over the teaching over my teaching career ive taught roughly 2,000 students. And now i have as a judge four law clerks per year and i also continue to teach at least a seminar where i have 15 or so students usually. What im looking for in a law clerk, of course, is excellent legal ability. Because i need the help to do the Legal Research and all of that sort of thing. I want someone who has excellent legal ability. I want someone who has integrity. I want someone who isnt afraid to push back and express his or her own opinions but at the same time realizes that, you know, i am the boss and if i disagree then they will have to go along ultimately. But i also want clerks who are, you know, this is part of the integrity, who have character. Our chamber is small. If someone had sharp elbows, you know, in a chamber that only has six people or that showed disrespect for arrogance that would make for a miserable year for everyone. I have not been disappointed. Every one of my law clerks has fit that bill. I see my duty with my law clerks like my students to encourage them to enter the profession as full people who have hopefully gained knowledge of their law in their time with me and live a life where people can disagree without being disagreeable. Thank you, judge barrett. My time is expired. Thank you, mr. Chairman. Senator whitehouse. Thank you. Let me ask unanimous consent that an essay i wrote for the harvard journal be admitted to the record. The report that sent democrats prepared called captured courts. Be admitted to the record. And that an article by Christopher Leonard of the New York Times called Charles Kochs big bet on barrett activating his Political Network to support judge barrett be entered. Without objection. Judge barrett on the 7th circuit you are subject to a code of ethics, are you not . I am. I presume you are okay with w that . Of course. You probably think thats a good thing . Yes. Indeed it is true of all the Circuit Courts that they are subject to pretty much the same code of ethics, correct . Yes. It gets different at the Supreme Court. Supreme court is not subject to a code of ethics, is it . The canons of judicial conduct that apply to lawyer courts do not apply to the Supreme Court. I believe its the practice of the Supreme Court to follow them. They do not apply, we agree. And indeed going to the Supreme Court can interrupt an ethics investigation as we saw with Justice Kavanaugh who had an ongoing ethics investigation in his circuit and interrupted by his appointment to the Supreme Court. Right . We have no 7th circuit investigation going on with you . Im not aware. I suspect you could be. We can put that behind us. With respect to reporting of gifts, of travel, of hospitality and what the constitution might call emoluments, all of the circuits have a pretty solid rule about reporting those and you comply with that rule on the 7th circuit, do you not . I do. It might even be by statute that we have to do that but i do. And the rule, i dont know how familiar you are with this. I offer this as a proposition. The rule that you follow and the way in which circuit judges follow it aligns quite well with the reporting requirements that in the executive Branch Members of the cabinet have to do when they get gifts, travel, hospitality and other emoluments and it aligns quite well with the reporting that members of congress have to do when they get when we get gifts of travel or hospitality or other such emoluments. The discrepancy here is with the Supreme Court. Which has a much lower standard of transparency and disclosure about those very same things. So its a bit of a mystery when i see the situation that when you go up to the court you will be not subject to the code of ethics that you are subject to now or any other, and you will have lower reporting requirements than you do now or that any of us do. I flag that for you because i think its anomalous the highest court should have the lowest standards and i dont know if you want to Say Something about that. At a minimum i hope you will keep an open mind about trying to fix that when you are on the court. If you have a defense of why the highest court should have a lower standard, have at it now. I didnt know i know that the justices file Financial Disclosure reports. I have never looked at one. I didnt know that they were different or that it was a lower standard from the ones the rest of us file. Take a look at that when you get up there. Its a matter i have never interrupted anybody. Can i one question . Now that you know that, how do you feel about it . Its a good question. Now that you know, how do you feel about it . I guess as i just said to senator whitehouse im surprised because i did think it was by a statute that applied to everyone. So im surprised. Ive always complied with filling out my Financial Disclosure reports and as im sure it may have been for you all, a little uncomfortable the first time to make your finances available anybody can request it. But i have always complied. For the record its a question of interpretation and practice and senator graham and i have actually had public conversations trying to remedy this with a legislative fix. You have that potentially coming your way. I flag that for you. The second thing, another topic i would like to raise with you is youve repeatedly mentioned during this hearing the phrase about litigation winding its way up through the courts and ultimately to the Supreme Court. And youve described that process of winding its way as an important restraint on judicial activism. But you have to wait until a court a case gets to you in the ordinary course, right . Fair description of where youve been . Correct. And the ordinarily when you do a case it begins with a person, right . Correct. And that person feels an injury yes. And then that person goes to a lawyer. Yes. And then that lawyer goes on their behalf to court. And files a complaint. And files a complaint. And then in court they try to win and vindicate their injury. Thats the basic standard way in which this works. Yes. So it gets a little weird sometimes. And thats a circumstance i would like to bring up to you because it touches on some of the stuff that i addressed yesterday. Not even a case. You know janice. Okay. Lets describe this as the janice saga. It is more than really one case. It is about a completely different case called abaaoud, you are familiar with that decision . Yes. Bill abaaoud decision was precedent for 40 years . I cant remember when it was decided. It was precedent before janice. Roughly 40 years ill tell you and repeatedly reaffirmed. A longstanding precedent. On which there was considerable reliance. Lets see. Janice did overrule that precedent and janice did go through the application of the stare decisis factors deciding whether to overrule it. There was reliance in the 40 years it had been the law of the land on the question of the union question that it resolved. Well, i dont want to second guess or criticize or praise the majority in janices. Im asking you as a matter of fact had 20 plus states relied on it . Senator, i think reliance and the degree of reliance on abaaoud is a legal question. Well leave that then. So the janice saga begins actually with a case called knox. In which Justice Alito took a shot at abaaoud. He criticized it as substantially impinging upon First Amendment rights of union members. For people who are watching, the abaaoud case was about the right of a labor union to get compensated, just compensation from nonmembers when in their representation of their members they get added benefits for the people who are not members. Not the most exciting part of the law but settled this question of when labor unions could get compensated for work they do for nonmembers. Judge alito did not like it and took a shot at it in knox and the concurrence the in that case. The majoritys choice briefed or argued disregards our rules. But Justice Alito didnt like something about abaaoud and he took that shot. Then we went on to later decision called harris versus quinn. Alito took another shot at abaaoud in that case describing it as having analysis that is questionable. He undertook an extended critique of the decision describing it as having questionable foundations. Justice kagan spotted that and said todays majority cannot resist at taking pot shots at abaaoud and described its critique as, something about abaaoud alito did not like. With that we went to the prequent. Then we went to the two cases that followed. The first one was friedrichs. Supposed to be the case that got rid of abaaoud. It had interesting travel because the lawyer in the case was one of these groups from janus. The center for individual rights right here who was counsel. In janus the National Legal Defense Foundation with counsel they switched. Freed rick center for individual rights counsel national right to work was an amicus when it went on to janus they switched. The national right to work Defense Foundation was counsel and center for individual rights was an amicus. And from everything that i see it looks like they actually went out and found the plaintiff. Back to our earlier discussion it wasnt the injured person that went and hired a lawyer, it was the legal group that went and found a plaintiff. And then they went to court which everybody does but it got interesting there because there the lawyers asked to lose. I dont know if youve ever been in a case where the lawyers asked the lose before i never have been. I never litigated against anybody who asked to lose. Have you ever been in a case where a party asks to lose . No, i dont think ive ever experienced that. Yeah, i can imagine not. So these groups with all this money behind them from donors trust and Bradley Foundation and all come into court and they say please dismiss my case in the District Court. They go up to the 9th circuit and specifically ask them to get rid of their case, dismiss uphold the decision dismissing their case as quickly as practicable and without argument. You ever seen a case in your circuit where somebody came in and said i would like to lose as quickly and without making an argument on behalf of my client . But abaaoud was controlling law at that point, right . My question was have you ever seen that happen in your circuit . I have not seen that happen in my circuit. So then the case went on to decision and as predicted or signaled by Justice Alito it looked like it was going to be a 54 decision knocking out abaaoud after 40 years. Sadly and unfortunately Justice Scalia died before that decision could be ren erd so it turned out to be a 44 decision and as you know, a 44 decision the tie goes to the division below and the 9th circuit prevailed and that was it for friedrichs. It didnt take long for this same group. This is back to my janus exhibit. These are all the commonly funded amicus and lawyers who showed up in janus. It was a reunion of the team. Everybody piling back in together to get what they there was no big rush this time because this time they had to wait for the vacancy on the court to be filled. They had to wait for Justice Gorsuch. So there wasnt the same rush. The case came through more ordinary travel and then boom, in they went to argue it and down came the decision. And i ask you to think that through because ive done some appellate argument and ive done some trial work and i have run an awful lot of litigation. And one of the things that has been a constant for me has been the belief that even if i was kind of taking a longshot case i would get a fair hearing, get a fair decision and i had a shot. Ive got a feeling that the lawyers going into the United States Supreme Court in that janus case looking at this array of commonly funded antiunion front groups assembled against them as amicus, having seen what friedrichs portended, having been signaled by alito in those earlier cases that they wanted to get rid of abaaoud. That they were on the hunt for abaaoud, thats a feeling that no lawyer should have in america. And all i want to do is leave with you the thought that when you are on the court i hope you will conduct yourself and see in whatever way you can that the court conducts itself in such a way that no lawyer goes into an argument in the United States Supreme Court feeling that the case is set against them and there is nothing to be done other than go in and take your medicine. Senator whitehouse i will approach every case with an open mind. I have a little bit of time left and ill get onto a third by the way im not the only one who sees this as a saga, the dissent in janus said here ends the six Year Campaign to undo abaaoud by the majority of five. Safe to say you dont think courts should be campaigning to reach decisions. Without commenting on janus or what happened there yes, i think judges shouldnt have campaigns or have pet projects or campaigns. They should decide cases. Thank you. So lets talk about because weve had all these i think different amicus floating around the Court Without discussing who is behind them lets talk about amicus for a minute. On the 7th circuit do you have ex parte meetings with litigants . No. Why . There are constraints against doing so. How about with if you have a case which there is an amicus in a case that is before you, would you meet privately with amicii while the case they have written a brief is pending . You mean meet prief ately and have them to have access to the judges privately to make the case . I would not do that. Why . It would be inappropriate. Yep. And in fact is it possible that you could not even know who was really behind the amicus if they havent told you . You mean how the amicus was funded . Correct. Sandra to my knowledge im thinking through what the disclosures are in the briefs. To my knowledge, that information is not part of what groups disclose when they file amicus briefs. Correct. There is a bit of tradition that has developed that amicus in their disclosure only describe who paid for the actual physical preparation and filing of the brief. So if you had a big interest lets say that went and gave a group a million dollars, maybe even stood up a popup group out of no place and said here is a million dollars. I want you to do great things. We would sure appreciate if you filed an amicus brief just dont mention us and love to give you advice what to say in the amicus brief and nice if you let us read it before you file it so we dont have to give you any more advice. That doesnt meet the standard of 37. 6. The court and parties would never know. In fact, this happened in the oracle case. In oracle versus google it turns out that oracle had given up to 99,000 according to their disclosure, to something called the internet accountability project which filed a brief and didnt disclose that oracle, a party in the case, had given it 99,000 and internet accountability project was basically a popup. Somebody established it. It took the money and wrote the brief. A group that has more credibility called the American Conservative Union which was given up to 500,000 by oracle and filed a brief in the oracle case and didnt disclose it had been given that kind of money by oracle. Isnt that the kind of stuff that parties ought to know, that the public ought to know, the court ought to know . I didnt know that until you just shared that information with me. Well, think about it because i think it is something that the public and the parties and the court ought to know. Because if what you have is amicus groups that are coming in flying false flags, not revealing whose interest they are really there to support, and potentially teeing up arguments and ideas that will benefit the secret funders that will maybe tee up for a case they know is coming but isnt this case but tilt the law a little bit it can have an effect later on. Other parties should know that. I surge you to consider that and im 13 seconds out. Ill leave it with that. Please think about these things. There is something that is not right about the way this is happening and i urge you and i urge anybody from the court who is listening to try to sincerely try to clean this mess up. It is not good for the court. Thank you. Thank you, senator whitehouse. Senator cruz. Thank you, mr. Chairman. Let me say first of all the last three days of hearings have revealed very good news. They have revealed the news that judge barrett is going to be confirmed by this committee and by the full senate. With two full days of questioning, weve seen that our democratic colleagues have very few questions actually to raise about judge barretts qualifications. Very little of the time weve spent in here has concerned her record as a judge, her 20 years as a respected scholar. Instead, much of this hearing has focused on political attacks directed at President Trump, i recognize our democratic colleagues wont be voting for President Trump in november. Thats their prerogative. But theyve largely abandoned even trying to make the case that judge barrett is anything other than exceptionally well qualified to serve as a justice. It is striking that as we sit here right now in this Committee Room there are only two Democratic Senators in the room. If you look at the dais there is chair after chair after chair thats empty. The Democratic Senators are no longer attending. I assume theyll show up for their time but it is indicative of what they are tacitly admitting that they dont have substantive criticism. May i make a point of personal privilege. Were in the midst of a covid19 crisis, pandemic. Some members are this their offices following this on television to stug their absence here means they arent following or participating is incorrect. I would note the senator from illinois omitted the fact that all but two of the democrats were physically here yesterday and after the questioning made the decision not to be here. Thats fine. You are welcome to make that decision but it is indicative when it comes to the time of the questioning that this side of the aisle does not have arguments against judge barrett that have any chance of prevailing. I do want to address a couple of the individual points that have been made. So many of the Democratic Senators have talked about obamacare at great length. At times i have been confused and i thought we were on the Health Committee instead of the Judiciary Committee because it has been such a central talking point for every democrat that if President Trump is reelected they assert everyones preexisting will be denied healthcare and people will be dying in the streets. And i get thats their reelection message. It is not actually connected to reality or not actually true. Every member of the senate agrees we are going to protect preexisting conditions. I would note that not a one of the Democratic Senators who raised that point have addressed the very real and catastrophic failures under obamacare. Obamacare has drubld the profits of the big insurance. It has been great welfare for giant insurance companies. According to the kaiser foundations average familys premiums have risen 7,967 per year on average. Thats catastrophic that millions of americans cant afford healthcare. It is a catastrophic failure of obamacare. And none of that has anything to do with judge barretts nomination to the Supreme Court. That is a very good argument for members of the senate to be having. And yes, we should be protecting preexisting conditions and expanding competition, expanding options and lowering premiums. This body will continue to debate that but judge barrett will not be the Decision Maker on what the appropriate approach to healthcare is as a policy matter. A second point i want to address, senator durbin had an exchange with judge barrett about the right to vote and also about the Second Amendment. Now as a policy matter Many Senate Democrats number one, want to see the Second Amendment abridgeed to the maximum extent possible and number two, Many Senate Democrats decided as a policy matter as many felons as possible able to vote. That it is, one would presume. Theyve made a determination its in their political interest to have more felons, more convicted murderers and rapist and more people convicted of Domestic Abuse voting. It made the assessment it helps their prospects on election day. They are entitled to make that policy determination. Different states have made different determinations about in what circumstances felons should be allowed to vote and when not be allowed to involvement im a bit puzzled. Not sure our democracy is better by changing the law to allow murderers to vote. Im not sure the operation of the republic would be better if Charles Manson had a greater voice in the electoral system. I would note one of our colleagues, senators sanders from vermont, the course of the democratic primaries argued not just felons who were out of jail but felons in jail. Charles manson, serving life sentences for murder should be able to vote. The policy matter i think thats pretty out there. But the interesting thing is, judge barrett wasnt called upon to make a determination whether it was a policy matter if felons should vote. Rather she was doing a very different thing which is applying the law. And judge barrett, did i hear you correctly that when you were describing your dissent in the kanter case that one of the reasons you said that there was a difference in the law as it concerned voting versus the Second Amendment is because the 14th amendment, the text of the 14th amendment explicitly contemplates legislatures making restrictions on voting whether youve committed a crime. Is that right . Thats right. I actually have the text of the amendment. Senator durbin was highly critical as a policy matter, he wants those felons voting but he didnt in fact address the legal issue that as a judge, judge barrett was abliejded to address in section 2 of the 14th amendment provides but when the right to vote at any election is denied or is in any way ab ridged except for participation in rebellion or other crime. Well, senator durbin may not like that the 14th amendment explicitly contemplates if youre a felon you may forfeit your right to do but its in the text of the constitution. And as a judge, judge barrett would be not doing her job were she not to look at the text of the constitution and follow the text of the constitution. Am i right, judge barrett that the Second Assembly Second Amendment doesnt have any language comparable to that you are correct. A third point. There has been some discussion from democratic members raising the question of the Federalist Society and dark money and all sorts of mysterious connections. Now, judge barrett, am i right that at least for a period of time you were a member of the federal society, is that right . While i was on the faculty as a fulltime tenured professor. You have spoken at some Federalist Society events, is that accurate as well . I have. In your time dealing with the Federalist Society have they ever lobbied you to take a particular position . They have not. In your time as a judge has the Federalist Society ever filed a brief in your court the Federalist Society does not litigate and never filed a brief in my court. You are understanding is correct. It doesnt file amicus briefs. Our democratics college have been in a sustained effort to sully the Federalist Society. It is disconnected from reality but i will say and i wish senator whitehouse were here. My intention was to have a discussion with him here. He just spoke about all the connections. He had his charts. I was feeling a little bad i didnt have a chart with red fuzzy yarn connecting all the things that are the deep conspiracies going on. I do have a chart thats a little bit smaller that has similar connections back and forth and it is produced by what is it, the americans for public trust and it shows the dark money connections between senator whitehouse and planned parenthood and Arabella Advisors and all these different organizations with money flowing back and forth and back and forth. All the dark money. In fact, i would note one of those dark Money Organizations on the left that we talked about yesterday that is the demand Justice Organization. I would point out the demand Justice Organization has decided to be directly involved in these proceedings because this is a left wing dark Money Organization that has posters that are right outside of this building that have pictures senator lee, you are on the poster, chairman graham are on the poster. Health and safety last, politics first. Super spreaders. If they want to put their pictures up. Its not a great picture chairman graham needs to work on getting a better picture to them. Not their fault. The democratic dark money efforts dwarf the republican dark money efforts which is why without a twinge of hypocrisy democratic members make this charge repeatedly. I will point to one specific example which is a judge, judge John Mcconnell who is a judge in the state of rhode island. Who is judge mcconnell . He used to be the treasurer of the rhode island democratic party. And the director of the rhode Island Branch of planned parenthood. How did mr. Mcconnell become a judge . According to roll call, he contributed about 500,000 to Democratic Political committees before becoming a judge. This by the way is more than any other judge nominated by obama or trump. So judge mcconnell stands at the top, 500,000. He donated 12,600 to senator whitehouse. Hosted a fundraiser for senator whitehouse in prove lins in 2006. Judge mcconnells wife gave another 250,000 to candidates and causes, 750,000 and now he is a judge after senator whitehouse vigorously led the fight to get him appointed a judge. He sits on the committee on code of conduct of the u. S. Judicial conference. What has he done on the committee on code of conduct . He has helped lead the charge to issue a new rule to try to ban judges from being members of the Federalist Society. And to the shock of no one looking at the red yarn connections, after judge mcconnell and the committee put out this assault on the Federalist Society to prohibit judges from sitting from being members, senator whitehouse and six other Democratic Senators loudly cheered that effort in writing. Now fortunately that effort was roundly denounced. Over 200 federal judges signed a letter supporting this. Federalist society doesnt lobby, file amicus brief or take Public Policy positions. Most of its events are debates where people on the left are featured prominently. Every single u. S. Supreme court justice, all of them have spoken at at least one Federalist Society event and thankfully the assault on the Federalist Society was withdrawn in the face of over 200 federal judges and i would note 29 senators roundly criticizing the attempt. Lets turn to a fourth issue. Many democratic members of this committee seem to be treating this hearing as a policy hearing on what is good healthcare policy. What is good gun policy, whats good Voting Rights policy. Judge barrett, in your view, is it is responsibility of a federal judge to implement policy positions that they might happen to agree with . Thats your job, not a judges. I very much agree with you. You know, its easy for someone watching these proceedings to assume both sides want the same thing just on opposite partisan lines. It is easy for someone watching to assume well, the democrats want democrat judges to implement their policy and the republicans they want republican judges to implement their policy. As easy as that is to assume, i dont believe thats accurate. It is certainly not accurate with respect to the sorts of judges i would like to see nominated and confirmed. Ill give you an example of that. An issue im deeply passionate about is School Choice. I think School Choice is the civil rights issue of the next century. But i also think the right to fight for School Choice is right here in the United States senate. The right arena to fight for School Choice is in the politically accountable legislatures. Do i want to see a federal court issue an order mandating School Choice across the country . It might be simpler if i could convince five justices to order every jurisdiction in america you must have School Choice. It would be a lot easier than trying to convince 51 or 60 senators, trying to convince the house. Weve gotten School Choice legislation passed through this body that ive introduced and it has been hard fought. Much easier in five philosophy kings could just mandate it but that isnt an appropriate judicial role. I believe that policy is the right policy, its not a judges role to mandate it. Interestingly enough our democratic colleagues do support judges prohibiting it. If you look at a case called zellman versus simmons harris, a challenge to ohios School Choice program. Ohios School Choice program gave scholarships to thousands of lowincome children. Mostly africanamerican and hispanic children trapped in failing schools. It gave them hope. It gave them a chance at a decent education and to escape violence and a chance to have a shot at the american dream. It was immediately challenged. The case went to the Supreme Court. By a vote of 54 the Supreme Court upheld the program. Four justices were prepared to strike down that program as unconstitutional. And with it every other School Choice program in america. To rule that the constitution doesnt let the elected legislatures decide to give scholarships to kids if they choose to go to a religious institution. As far as im concerned thats a radical and activist position. Four justices were ready to shut down School Choice programs around the country. Thats an example how one side wants the court to mandate their policy outcomes, the other side does not. I dont want School Choice mandated. I want it to be left to the political process. For my last couple of minutes i want to address one other issue which is the issue of packing the court. We have seen repeatedly joe biden and Kamala Harris refuse to answer whether they would pack the court. What does it mean to pack the court . Packing the court means one very specific thing. Expanding the number of justices to achieve a political outcome. Packing the court is wrong. It is an abuse of power. I believe should they win in november that our democratic colleagues will pack the courts. I think thats why joe biden refuses to answer it although he did say when asked the voters dont deserve to know his answer as to whether he will pack the court. And what weve seen this past week as weve seen with a message discipline that is quite remarkable, Democratic Senators all making a new argument that what republicans have done for four years is packing the court. With all due respect, what utter nonsense. Filling judicial vacancies is not what that term means. They are endeavoring to redefine the language, to set the framework, to set the predicate for a partisan assault on the court. I will read you some quotes. Joe biden in 1983 quote, fdrs Court Packing idea was, quote, a bone headed idea, a terrible, terrible mistake to make. And it put in question an entire decade the independence of the most significant body in this country. Pat leahy in 2017 quote. The Judiciary Committee once stood against a Court Packing scheme that would have eroded judicial independence. It was a proud moment. Senator blumenthal and senator durbin, 75 years ago we went through this and i think the congress was correct in stopping this popular president named Franklin Roosevelt from that idea. Justice ginsburg in 2019 quote, if anything would make the court look partisan it would be that, one side saying were in power and were going to enlarge the number of justices so we would have more people who would vote the way we want to. Nine seems to be a good number. It has been that way for a long time and i think it was a bad idea when president Franklin Roosevelt tried to pack the court. Thats the next fight were facing if democrats win the majority. I hope that we dont see that come to pass. Thank you. Senator cruz, well come back at 12 30 and lead off with senator coons. Sandra the second and final day of questioning of Amy Coney Barrett. They will take a break. They spent a good khuj of their time separating her personal views and how she would do that on the bench and legal rulings. We saw it yesterday and continued today. 22 senators have to go. So far weve had nine. 13 more to go. This should go well into the hours of this afternoon. At least 4 1 2 of realtime. Takes you to 5 00 or 6 00. Maybe early in the evening tonight. Senator graham has set this up in a way where they could possibly based on the timing now, vote on this nomination at the close of business tomorrow on thursday. So you would have what, four days and then you would have a vote on the nomination that would go to the full floor of the senate. Based on that schedule they could at the moment get it done before election day. A couple moments here. Senator graham at the outset was interesting. She is going to the court. One of his opening lines today. I thought the give and take with senator leahy was interesting. The photo of voters in decal be county. Early voting started on monday. You could argue whether or not it was Voter Suppression or a lot of voters anxious to do it early. Sandra we talked about an exchange with dick durbin the senator from illinois as well. Digging deeper on her thought other abortion, healthcare, president ial election. Kamala harris yet to go. Amy klobuchar who had a big moment yesterday. Klobuchar at 12 30. Dianne feinstein when judge barrett talked about severability and law and feinstein said im impressed and went forward. Sandra well see you this afternoon, bill. That does it for is, Harris Faulkner will take you through the next few hours. The confirmation hearing for judge Amy Coney Barrett is set to resume in just a few minutes from now. They said 12 30 p. M. Eastern. It is the third day of hearings. The second straight day that judge barrett is fielding questions from senators. You are watching special coverage. Im Harris Faulkner. Senate jude i shall naer Committee Chairman Lindsey Graham said he would be confirmed and the democrats pressed her on a Affordable Care act. Shannon bream is inside the hearing room. During that break we can talk with her and