What this gets at or what this requires courts to do is to decide who is a minister. On the one hand, there may be some which you could plainly it might be more obvious questions like someone who teaches religion, religion teachers. What the court has said is those were 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 who, lets say, is teaching math. The courts have to come up with a test to decide whether such a person is a minister or not. What the cases said is 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 grescott the teacher spent time teaching jewish prayers and saying prayers with the class and the school considered it part of the teachers duty to inform the student, to teach them about jewish prayers and perform them in that tradition. Even though she spent other time in the curriculum teaching other matters, it viewed that as part of her job and the school viewed her as a minister. Our lady of guadalupe gives a lot of deference to the schools characterization as to whether someone is a minister or not, not to encourage discrimination, of course, but simply to protect religious freedom so at a lath lick school the teacher may teach math but also prays with the students in the morning, attends math with them during the week and is considered by the school, in our lady of guadalupe, as someone who is informing children in the faith. Its about the scope of that ministerial exception and how you identify someone as a minister. Thank you. Thats helpful. 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 seventh circuit, you said, quote, if theres eefr 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. Do you still stand by that statement . I do. I have 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 this is because your record on the seventh circuit shows youre able to set aside your personal convictions because thats what youve done when they have conflicted with your duty under the rule of law. In price versus chicago, for example i assume you remember that case. Its a case in which you joined a seventh Circuit Panel opinion affirming the legality of a chicago buffer zone law which places limits on pro life activists as theyre demonstrating, exercising their First Amendment rights outside 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 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. So there was binding precedent on point, and so you followed that precedent and you did so as a jurist rather than following whatever personal p d predilection might have otherwise guided you or any other member of that panel. In planned parenthood of indiana versus connecticut Indiana State Department of health, you joined a dissent written by judge Frank Easterbrook of the seventh circuit. 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. A position that garners a sevenvote majority on the Supreme Court these days, a 72 decision that includes youity brier and Justice Kagan does not seem very radical to me. Do you disagree . Am i missing something about that . The Supreme Court summarily reversed which means without argument and briefing, the panels holding in that case that the fetal remains, the disposition of fetal remains, the portion of that statute wasnt rational. I note for the record that i dont think ive ever heard anyone characterized as a radical actor, 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, youve also demonstrated the ability to expertly determine what the law requires. This stems, i believe, from fundamental and i believe correct view that jurists, 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. You seem to follow with that. 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 for the u. S. Court of ap peoples from the seventh circuit and determined that your decisions and this is a quote quote, case by Case Consideration of the relevant law and facts without any clear overarching trend toward either expanding or narrowing Fourth Amendment protection, closed quote. This is exactly what i would expect from a textualist, originalist, on an issue that like the Fourth Amendment can be politically charged. This is exactly what youd expect to see, somebody who doesnt appear to be a partisan one way or another and comes down on both sides, on the government side and on the nongovernment side. This would also provide for a variety of outcomes in your case. Youre not aiming for an overarching trend in outcomes. Your analysis seems sometimes to come out in favor of a defendant, sometimes in favor of the government. I find your dissents and your concurring opinions in Panel Decisions that demonstrate this commitment to following the law as its written rather than on the basis of some external objective. Can you tell us why you felt the need to dissent in the case of schmitt versus foster . Yes. That case involved a state court case that 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 sourts, acourts, defendant argued an exparte 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, that is 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 that he could not. In that case, the wisconsin courts held that this proceeding did not violate the defendants right to counsel, telling his counsel he couldnt speak. It came to my court under 2254 which is the state habeas statute permitting collateral review of state convictions, but it requires very heavy deference to state courts. You can only disturb a state court holding, for example, determination on a matter of law if no reasonable jurist could reach that conclusion, or it has to be in conflict with clearly established Supreme Court law. And in that case i made clear that it wasnt up to us to decide whether we thought as an original matter, as if the case came up before us, whether that violated the sixth amendment because as the panel majority, which then became a dissent, said this was an unprecedented kind of hearing. If it was unprecedented, meant there was no clearly established Supreme Court law on point. So the decision in that case was driven by federalism and statutory instruks 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 circumstances of the case and the detention there involving flight by the individual from the scene. But you wrote separately. Tell us why you wrote separately in that case . So that case, if i have the case correctly, ive been almost 600 cases, but i think i know the case where youre talking about. I think that was a case where police had a tip about criminal activity and there were a group of men in a park. The police approached the park and 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 some sort of athletic shorts that showed a bulge. The police approached the man and he fled. Under Supreme Court case law the determinative question for a seizure is whether the person fled and then was detained and seized by the police. The other way that could have been justified is as a matter of a stop, the police had reasonable suspicion to approach him just because he had 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 they had an anonymous tip. The people in the park didnt match the description of the description given in the anonymous tip. All they saw was a bulge in the pocket. If he had not fled i thought 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. I think that shows real courage and moral and judicial leadership to speak out and write separately. You did so here with nothing to gain from it. You did so because it was important to point that out under the law. I respect that a lot. In the couple minutes weve got left, i wanted to ask you broadly about something ive noticed in reviewing letters and other materials weve received in response to your nomination. I notice that theres a common theme among your law clerks and your students. They feel like you see them as individuals and they feel mentored and taught by you. Tell us a little bit about that. Id love to hear, for example, 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. 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 in which i have 15 or to 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. So i want someone who has excellent legal ability. I want someone who has integr y integrity. I want someone who isnt afraid to push back and express his or her own opinion, but at the same time realizes that i am the boss, and if i disagree, theyre going to have to go along ultimately. I also want clerks who are and this is part of the integrity, who has character. Our chambers are small. If someone has sharp elbows or showed disrespect or arrogance, that would make for a pretty miserable year for everyone. I have not been disappointed. Every one of my law clerks has fit that bill. I view it as my duty with my law clerks like my students to encourage them to answer the profession as full people who hopefully have gained some knowledge of the law in their time with me and also see how they can live a life where people can disagree without being disagreeable. Thank you, judge barrett. I see my time has expired. Senator whitehouse. Thank you, chairman. Judge barrett. Senator. First, if i may, chairman, let me ask unanimous consent an essay i wrote for the harvard journal on legislation called dark money and u. S. Courts. Without objection. Captured courts be admitted to the record. And an article by Christopher Leonard in the New York Times called Charles Kochs big bet on barrett activating his Political Network to support judge barretts nomination. Without objection. Judge barrett, on the seventh circuit you are subject to a code of ethics, are you not . I am. I presume you are okay with that . Of course. Fact, i would submit you probably think thats a good thing. Yes. Its true of all the circuit courts, that theyre subject to pretty much the same code of ethics, zplekt. Yes. Its different at the Supreme Court. The Supreme Court is not subject to a code of ethics, is it . The canons of judicial conduct that apply to Lower Court Judges do not apply to the Supreme Court, although i do believe its the practice of the Supreme Court to follow them. They do not apply, we agree. 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 that was interrupted by his elevation to the Supreme Court without having concluded. Let me first ask you, theres no such thing with you, correct . We have no sencht circuit investigation going on that would be interrupted by your elevation to the Supreme Court . Im not aware of any. I suspect you would be. So good, we can put that behind us. With respect to reporting of gifts, of travel, hospitality, what the constitution might call emollients, all the circuits have a pretty solid rule about reporting those and you comply with that rule on the seventh circuit, do you not . I do. It might even be by that stut that we have to do that, but i do. And the rule i dont know how familiar you are with this, so ill offer this as a propositi 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 emollients 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 emollients. 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, youll be not subject to the code of ethics that youre subject to now, 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 thats anomalous that the highest court should have the lowest standards. I dont know if you want to Say Something about that. At a minimum, i hope youll keep an open mind about trying to fix that when youre on the court. If you have a defense as to why the highest court should have a lower standard, have at it now . I didnt know i know the justices file Financial Disclosure reports. Ive never looked at one. I didnt know it was different or a lower standard from what the rest of us file. Take a look when you get up there. Ive never interrupted for anybody. But i can ask one question. Now that you know that, how do you feel about it . That the Supreme Court can i save my time while youre answering the question. Now that you know, how do you feel about it . I guess, as i just said, im surprised. I did think it was by a statute that applied to everyone. Im surprised. Ive always complied with filling out my Financial Disclosure reports. Im sure it may have been for you all, its a little uncomfortable the first time to make your finances available. Anybody can request it. But ive always complied. For the record, its a question of interpretation and practi practice. Weve had conversations about how to remedy this with a legislative fix. You have that potentially coming your way. I flag that for you. Another topic id 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, that youve got to wait until a case gets to you in the ordinary course, correct . Correct. Thats a fair description of where youve been . Correct. Ordinarily i dont know if youve ever done a case, but ordinarily when you do a case, it begins with a person, right . Correct. That person feels an injury. Yes. And that person goes to a lawyer. Yes. Then that lawyer goes on behab their behalf to court. And files a complaint. And files a complaint. And thats the standard way in which this works. Yes. So it gets a little weird sometimes, and thats a circumstance id like to bring up to you because it touches on some of the stuff that i addressed yesterday. Its not even a case. You know janas. Lets describe it as a saga. Its about a different case called abaaoud. Youre familiar with the abaaoud decision. It was precedent for, what, 40 years. I cant remember when abood was decided. It was precedent. Roughly 40 years ill tell you. Repeatedly reaffirmed. It was a longstanding precedent. On which there was considerable reliance. So janas did overrule, so it went through the application of the stare decisis factors in deciding whether to overrule it. And there was, in fact, reliance in the 40 years that it had been the law of the land on the question the union question that it had resolved. Well, i dont want to second guess or criticize or praise the majority in im not asking you to. Im asking, as a matter of fact, had 20plus states relied on it . Senator, i think reliance and the degree of alliance on abood is a legal question. Well leave that. The janas saga begins with a case called knox in which Justice Alito took a shot at abood. He criticized it and substantially impinging upon First Amendment rights of union members. Just for people who are watching, the case was about the right of a labor union to get compensated, not dues, but just compensation from nonmembers when in their representation of their members they get added benefits for the people who are not members. So 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. Justice alito didnt like it. He took a shot at it in knox versus seiu. The concurrence in that case said, wait a minute oochs, quote, the majoritys choice to reach an issue not presented by the parties briefed or argued disregards our rules. But Justice Alito didnt like something about abood, so he took the shot. Then we went on to harris v quinn. Alito took another shot at abood in that case, describing it as having analysis that is questionable. He undertook an extended critique of the decision. Justice kagan spotted that. In her defense she said todays majority cannot resist taking pot shots at abood and described its critique of aboods foundations as gratuitous dicta. But the message went out from judge alito that he wanted to do something about abood. There was something about abood that he did not like. With that we went to thats the prequel. Then we went to the two cases that followed. The first one was friedrich which was supposed to get rid of abood. It had an interesting travel. The lawyer in the case was one of the groups from janas, it was the center for individual rights right here who was council. The National Defense foundation was counsel so they switched. In janas national right to work was an amicus. When it went to janas they switched, national right to work legal Defense Foundation was counsel and center for individual rights was an amicus. From everything i see, it looks like they actually went out and found the plaintiff. So 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 with a case in which the lawyers have asked to lose before. I never have been. Ive never litigated against anybody who asked to lose. Have you ever been in a case in which a party asked to lose . No. I dont think ive ever experienced that. I can imagine not. So these groups with all the 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. Then they go up to the ninth circuit and they specifically ask the ninth circuit to get rid of their case, to uphold the decision dismissing their case, quote, as quickly as practical practicable and without argument. Have you ever seen a case in your circuit where somebody said id like to lose and id like to lose as quickly as practicable and lose without making an argument on behalf of my client . But abood 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. Then the case went on to decision and as signaled by Justice Alito, it looked like it would be a 54 decision knocking out abood after 40 years. Sadly and unfortunately Justice Scalia died before that decision could be rendered, so it actually turned out to be a 44 decision. So in that case the die goes to the decision below and the ninth circuit prevails. That was it for friedrichs. It didnt take long for this same group. Back to my janas exhibit. These are the commonly funded amici and lawyers. 11 showed up in friedrichs. Janas was a reunion of the team, voitd piling back in together. There was no big rush this time because this time hey had to wait for the vacancy on the court to be filled. They didnt want a 44 decision. They had to wait for justice gorsuch. So there wasnt the same rush. The can case came through more ordinary travel and, boom, in they went to argue it and down came the decision. 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. One of the things that has been a constant for me has been the belief that, even if i was kind of taking a long shot case, id get a fair hearing, get a fair decision and i had a shot. Ive got a feeling that the lawyers going into the United StatesSupreme Court in that janas case looking at this array of commonly funded antiunion front groups assembled against them as amici, having seen what friedrichs portended, having been signaled by alito in those earlier cases that they wanted to get rid of abood, they were on the hunt for abood. Thats a feeling that no lawyer should have in america. All i want to do is leave with you the thought that when youre 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 StatesSupreme Court feeling that the case is set against them and theres nothing to be done other than to 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. Im going to get onto a third by the way, im not the only one who sees in as a saga. The dissent in janas said, quote, here ends the sixyear campaign to undo abood by the majority of five. Pretty safe to say that you dont think courts should be campaigning to reach decisions. Without commenting on janas and what happened there, yes, i think judges shouldnt have campaigns. Or projects. I think judges should not have pet projects or campaigns and they should decide cases. Lets talk about because weve had all these odiferous amici fluttering around the Court Without disclosing whats really behind them, lets talk about amici for a minute. First of all, on the seventh circuit, do you have expour they meetings with litigants . No. Because why . Well, that would be because its wrong . Yeah, sure. There are constraints against doing so. And how about with amici . If you have a case in which theres an amicus in a case that is before you, would you meet privately with the amici while the case in which theyve written a brief is pending . You mean meet privately, allow the amici to have access to the judges privately . Yes. I would not do that. Why would you not do that . That would be inappropriate. 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. To my knowledge, im thinking through what the disclosures e are. To my knowledge that information is not part of what groups disclose when they file amicus briefs. Correct. Theres actually a bit of a tradition that amici 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 set up a popup group out of know place and said here is a Million Dollars and i want you to go out and do great things, by the way, wed love to give you some advice about what you should say in the amicus brief and it would be nice if youd let us read it before you file it so we can make sure we dont need to give you any more advice, that doesnt meet the standard of 37. 6. The court and the 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. Internet accountability project was basically a popup, somebody established it. It took the money, wro et the brief. Theres a group that has more creds thats been around longer, 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, that the court ought to know . I didnt know that until you just shared that information with me. Well, think about it. I think its something that the public and the parties and the court ought to know. If what you have is amicus groups coming in flying false flags, not revealing whose interest theyre 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 if they can tilt the law a little bit, it can have an effect later on. I urge you to consider that. Im 13 seconds out. Ill leave it with that. Please think about these things. Theres 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 clean this mess up because 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 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 most of this hearing has focused on political attacks directed at President Trump. I recognize our democratic colleagues are not going to be voting for President Trump this november. Thats certainly 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, theres chair after chair after chair that is empty. The Democratic Senators are no longer even attending. I assume theyll show up for their time, but it is indicative of what theyre tacitly admitting which is they dont have substantive criticisms. May i make a point of personal privilege . Were in the midst of a covid19 crisis, a pandemic, some members are in their offices following this on television. To suggest their absence here means theyre not following or participating is incorrect. I would note the senator from illinois and his personal privilege omitted the fact that all but two of the democrats were physically here yesterday and after the questioning they made the decision not to be here. Thats fine. Youre welcome to make that decision. Its 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. 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 Judicial Committee because its been such a central talking point for every democratic that, if President Trump is reelected, they assert everyone with preexisting conditions is going to be denied health care and people will be dying in the streets. I get thats their reelection message. Its not actually connected to reality. Its not actually true. Every member of the senate agrees were going to protect preexisting conditions. I would note not one of the Democratic Senators that raised that point have addressed the catastrophic failures over obamacare. Obamascare has doubled the profits of the Big Health Insurance companies. Its been great corporate welfare for giant Health Insurance companies. At the same time, according to the kaiser foundation, average family premiums have risen more than risen 7,697 per year on average. Thats catastrophic when millions of americans cant afford health care. Its a cots trophic 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. 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 health care is as a policy matt 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. As a policy matter they want it abridged to the maximum amount possible. Number two, Many Senate Democrats have decided they would like to see 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 con viced murderers, more convicted rapists, committed of Domestic Abuse voting. Theyve made an assessment that helps their prospects on election day. Theyre entitled to make that policy determination. Different states have made different determinations about in what circumstances felons should be allowed to vote, in what circumstances felons should not be allowed to vote. I, for one, am a bit puzzled. Im not sure our democracy is better by changing the law to allow murderers to vote. Im not sure the opinions of the republic would be better if Charles Manson had a greater voice in the electoral system. I would note one of our colleagues, senator sanders from vermont, in the course of the democratic president ial primaries argued not just felons who are out of jail, he argued felons who are in jail, literally Charles Manson serving i think multiple life sentences for murder, should be able to vote. As a policymaker i think thats pretty out there. But the interesting thing is judge barrett wasnt called upon to make a determination whether as a policy matter every felon should vote, no felon should vote or somewhere in between. Rather she was doing a very different thing which was applying the law. 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 there was a difference in the law as it concerned voting versus the Second Amendment is because the 14th amendment, the next of the 14th amendment explicitly contemplates legislatures making restrictions on voting based on whether youve committed a crime. Is that right . Thats right. And i actually have the second of the amendment because senator durbin was highly critical. As a policy matter, he wants those felons voted. He didnt address the legal issue that judge barrett was obliged to address. Section two provides in relevant part, but when the right to vote in any election is denied or is in any way abridged except for participation in rebellion or other crime well, senator durbin may not like that the 14th amendment explicitly contemplates if you commit a crime, if youre a felon, you may forfeit your right to vote, but thats in the text of the constitution. 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 Amendment doesnt have similar language suggesting or other crime or anything comparable to that . You are correct. All right. A third point. Theres been some discussion from democratic members raising the question of the Federalist Society and dark money and all sorts of mysterious connections. Judge barrett, am i right that at least for a period of time you were a member of the Federalist Society. Is that right . While i was on the faculty as a fulltime tenured professor. And youve spoken at some of theyre vents 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 federal lift society ever filed a brief its my understanding the federal society doesnt litigate. They have never filed a brief in my court. Your understanding is correct, the Federalist Society doesnt file amicus briefs. Our democratic colleagues have been engaged in a sustained effort to try 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 this discussion with him here because he just spoke and spoke about all the connections he had in his charts. I was feeling a little bad that i didnt have a chart with red fuzzy yarns connecting all the things that are the deep conspiracies. I do have a chart thats a little smaller that has similar connections back and forth. It is produced by, what is it, the americans for public trust. It shows the dark money connections between senator whitehouse and planned parenthood and arabella advisers and all of 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 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 this building that have pictures senator lee, youre on the poster. Chairman graham, youre on the poster. The posters say, spiel superspreaders, politics first, health and safety last. The First Amendment is a great thing. If they want to put pictures, pretty good picture of senator lee. Chairman graham needs to work on getting a better picture to them. Its not their fault. The democratic dark money efforts dwarf the republican dark money i have 40s which is why, without a twinge of hypocrisy democratic members make this charge repeatedly. In fact, i will point to one specific example which is a judge, judge john j. Jack mcconnell, a judge in the state of rhode island. Who is judge mcconnell . He used to be the treasure of the Rhode Island Democratic Party and the director of the rhode Island Branch of planned parenthood. How did mcmcconnell become a judge . According to cq roll call, he contributed about 50,000 to Democratic Political committees before becoming a judge. This by the way is more than any other judge nominated by obama or trump. Judge mcconnell stands at the top. 500,000. He donated 12,600 to senator whitehouse. He hosted a fundraiser for senator whitehouse at his home in providence in 2006. Judge mcconnells wife gave another 250,000 to candidates and causes. So thats 750,000. And now judge mcconnell 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 society from being members, senator whitehouse and other senators loudly cheered that effort in writing. Now, fortunately that effort was roundly denounce d. Over 200 judges signed a letter opposing this. The Federalist Society doesnt take Public Policy positions. Most of its events, Supreme Court judges have spoken at at least one Federalist Society event. Thankfully, the assault on the Federalist Society was drawn 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 member of this committee seem to be treating this hearing as a policy committee, whats good health policy, whats good gun rights policy, whats good voting policy. Judge barrett, in your view, is it the 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. Its easy for someone watching to assume, well, the democrats want democrat judges to implement their policy and the republicans want republican judges to implement their policy. As easy as that is to assume, i dont believe that is accurate. It is certainly not accurate with respect to the sorts of judges i would like to see nominated and confirmed. And ill give you an example of that, an issue that 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 arena to fight for School Choice is the United States senate. The right arena to fight for School Choice is in the politically accountable elected legislatures. So do i want to see a federal court issue an order mandating School Choice across the country . It might be simpler if i could just convince five justices to order every jurisdiction in america, you must have School Choice. It would be a lot easier to try to convince 51 or 60 senators, trying to convince the house. Weve gotten School Choice legislation passed through this body that i introduced, but its been hard fought. It would be much easier of five philosopher kings could just mandate it. Im not asking judge barrett to issue any such ruling although 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 zelman versus simmons harris, that was a case about an ohio School Choice program that gave scholarships to thousands of low income children, mostly africanamerican and hispanic children, trapped in failing schools. It gave them hope. It gave them a chance at a decent education, a chance to escape violence, a chance to have a shot at the american dream. It was immediately challenged. 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 all across the country. Thats an example of 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 which is 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 court. 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 hell pack the court. And what weve seen this past week is weve seen, with a message discipline that is really 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 and 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 boneheaded idea, it was 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. That was a proud moment. Senator blumenthal, much the same. Senator durbin, in 2018, quote, 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, were going to enlarge the number of justices, not fill vacancies, enlarge the number of judges 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. 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. 12 30. Well, there you go. Lindsey graham promising a quick lunch, it appears. Well, wait a minute. And of course we just missed that audio, sorry, it looks like he gave another reminder of something and we will be able to talk to our correspondent that is in the room to find out that last piece of guidance that the chairman gave. Im chuck todd of nbc news and youre watching msnbcs special coverage of the hearings for the Supreme Court nominee judge amy coney barrett. This hearing is expected to go well into the afternoon when the committee returns from lunch. So far, like yesterday, theres been a lot of discussion on the issue of health care, some discussion on precedents. Once again, like yesterday, judge barrett has been extremely careful not to directly answer questions about how she might rule on issues ranging from abortion, president ial poli polygamy came up. Garrett haake, al franken, rich lowry, claire mccaskill. Senator franken, youre part of the team today. Why not . Youve got to talk to people above my pay grade. No offense, al franken, im going to start with garrett haake. We missed the last bit of instruction from Lindsey Graham there at the end. Anything we should know before that . And give me your general observations from where you sit. I think he was just clarifying that the next senator to speak will be senator klobuchar, not senator coons who was sitting next on the dias because senator klobuchar was not in the room. Obviously significant focus on the democratic side of the aisle on the Affordable Care act. We heard a lot of discussion about severability which ill leave it to our legal experts to get into in more detail. But you heard the judge talk about the idea of severability as jenga, whether you could remove one piece and whether the whole law topples down. She was pressed as hard as weve seen her pressed on any topic by senator dick durbin on the questions of Voting Rights and the tension between her views on whether or not felons could have access to firearms versus felons who could have access to the franchise, that was an important exchange. Then we saw the more broadly, nakedly Political Part of this confirmation process with senator cruz there at the end using this as an opportunity to go after sheldon