Transcripts For CSPAN Part 2 Supreme Court Nominee Amy Coney

Transcripts For CSPAN Part 2 Supreme Court Nominee Amy Coney Barrett Confirmation Hearing - Day 3 20240712

Company and the Public Service, and brought to you today by your television provider. Day three ofrom judge Amy Coney Barretts confirmation hearing. This includes lessons from senator klobuchar, codes, and on thought. Among others. Thank you. The hearing will come back to order. Senator klobuchar. Sen. Klobuchar thank you very much, mr. Chairman. Hello, judge. Judge barrett hi senator. Sen. Klobuchar hello. I want to start out again by reminding our friends at home, people at home, that this isnt normal. We shouldnt be here right now. We are in the middle of a pandemic, and people are sick. We are in the middle of an election, and people are voting. And yet here we are, stuck in a nomination hearing. I know what my constituents care about, what they have been calling and writing me about. And that is they are afraid of losing their health care in the middle of the pandemic. Peoples lives depend on the Affordable Care act like steve, a senior from minnesota who has a heart condition and relies on his prescription medication. Emily from minneapolis, her mom was diagnosed with breast cancer. Janet from rochester whose brother has a mental illness. Or christie, a mom from bloomington whose daughter had a tumor. That is what is on the line. Health care is on the line and judge, that is what is on the line in your nomination hearing which unfortunately has been procked in the middle of this election. This morning you had an academic discussion with chairman graham about the doctrine of severability, and that is about if you can uphold part of a statute or throw out another part of it. And you correctly said there was a presumption to save the statute if possible. So i want to be really clear with the American People that the Trump Administration, this is a position of the Trump Administration, the Trump Justice Department says that the entire Affordable Care act must fall. That is the position of the Trump Administration going into this case that is going before the Supreme Court in a few weeks. Judge, you clerked at the Supreme Court. Does the Justice Department brief that they have filed represented the administration and therefore the president s position before the Supreme Court . Judge barrett the Government Advocate before the court. It would represent the United States. Sen. Klobuchar and if the brief did not represent the president s position, he would have the solicitor general and the Justice Department withdraw the brief is that right . , judge barrett sen. Klobuchar i believe so, yes. Sen. Klobuchar i just wanted to make that clear to the chairman and to everyone out there that while there is this doctrine to separate stop and to try to uphold part of the statute with preexisting conditions or doing something about keeping your kids on the insurance, the position of the Trump Administration is to throw the whole thing out. The second thing i want to make clear is that youve been nominated to the highest court in the land and you will be the deciding vote in many cases that will affect peoples lives. And i appreciate that you have said it is not the law of amy, it is not your law, but the point is that you will be in a really important position. I think that is one of the reasons that they are trying to ram through this process right now. And while you are not say how you are going to rule on cases, as i said yesterday, ive been following the tracks. The only way for the American People to figure out how you might rule is to follow your record and to follow the tracks. And we know this, you have said you consider Justice Scalia one of the most conservative judges in our nations history as a mentor. You criticized the decision written by Justice Roberts upholding the Affordable Care act. In a 2015 npr interview you , praised the dissent by Justice Scalia in another Affordable Care act case, saying the dissent had the better of the legal argument. You sign your name to a Public Statement featured in an ad that called for an end to what the ad called the barbaric legacy of roe v. Wade which ran on the anniversary of the Supreme Court decision of 1973. You wrote your own dissent disagreement Longstanding Court rulings on gun safety, expressing your legal opinion that some felons should get guns and you once discussed it is sent in the marital quality case asking whether it was really the Supreme Courts job to make that decision. So, to me, these tracks lead us to one point, and that is that you will have the polar opposite judicial philosophy of Justice Ginsburg. And to me, that would change the balance of this court which is already 54, and known as very conservative when you look back through history to 63. 63. That would have great repercussions for the American People. So i wanted to followup on something that senator harris and i asked you about yesterday and that is the issue of whether or not you understood the president s clear position on the Affordable Care act before you wrote the article in which you criticized the legal reasoning for upholding the Affordable Care act. The president tweeted just one day after you were nominated, that would be september 27, that it would be a big win if the Supreme Court strikes down the health law. But before you were nominated, and this is what we showed yesterday, donald trump tweeted promising that his judicial appointments will do the right thing on obamacare unlike Justice Roberts. Yesterday, you were asked by senator harris prior to your nomination, were you aware of President Trumps statement committing to nominate judges who will strike down the Affordable Care act . You said i cant really definitively give you a yes or no answer. What i would like to say is i dont recall hearing about or seeing such a statement. And after she followed up, you said that the tweet wasnt something that i heard or saw directly by reading it myself. Ok. So i just want to go through some of the things that have happened over the last few years. Regarding the president s obsession to repeal obamacare. He said we will repeal and replace disastrous obamacare when accepting the republican nomination at the Republican Convention in 2016. Did you see that speech . Judge barrett at the Republican Convention . Sen. Klobuchar in 2016, im not asking if you were there, i asking if you saw it on tv. Judge barrett i dont believe i watched any of the convention on tv. If i did, i do not remember any of it. Sen. Klobuchar he had said things like he wants to immediately repeal and replace the disaster known as obamacare. He has said that he wants to get rid of it. He has said and states in states of the union, i am calling on congress to repeal it. He said at Mitch Mcconnell less green repeal and replace for seven years could not get it done. There have literally been hundreds of statements by him, by my colleagues, and i just find it hard to understand that you were not aware of the president s statements. Judge barrett i am aware that the president opposes the Affordable Care act. I am aware that he has criticized the Affordable Care act. I took senator harriss question yesterday to be referring to a specific tweet, maybe the one that you have behind you, about how he wanted to put a justice on the court to replace obamacare. Im definitely aware of that tweet now, and as i said to senator harris yesterday, it came up in some of my calls the democratic senators. But i honestly cant remember whether i knew about it before i was nominated or not. Im not sure. Sen. Klobuchar but did you have then a general understanding that one of the president s Campaign Promises was to repeal the Affordable Care act when you were nominated . Judge barrett as i said before, im aware that the president opposes the Affordable Care act. Sen. Klobuchar i know you are aware now. Were you aware back then . When you were nominated. Judge barrett senator klobuchar, i think that the republicans have kind of made that clear through public discourse. Sen. Klobuchar is the answer yes, then . Judge barrett senator klobuchar, all these questions you are suggesting that i have animist or that i cut a deal with the president. I was very clear yesterday that that isnt what happened. Sen. Klobuchar were you generally aware of the president s statements when you wrote an article in the university of Minnesota Law School journal in 2017, the same year that you became a seventh circuit judge, that he pushed the Affordable Care act beyond its plausible meaning to save the statute that Justice Roberts had done that . Were you aware of that, of the president s statements when you wrote that article . Judge barrett that article was published in january of 2017. A law review article takes several months to go into production. No i cant remember specifically , when the conference was. That article came out of a conference. I cant member what it was but i suspect it was before the election. Its not like i wrote it in january 2017. Klobuchar President Trump has been saying this in 2015, 2016, and that is two years. It didnt take that long to read to write that article. My question is simply, were you aware of President Trumps opposition to the Affordable Care act during that time . Judge barrett senator klobuchar, i have no idea and i suspect that if the article was published in january that i wrote it sometime before the president ial election. And again, i want to stress i have no animus to or agenda for the Affordable Care act. To the extent that you are suggesting this was an open letter to President Trump. It was not. Sen. Klobuchar ok. In the 2017 university of Minnesota Law School journal that we just discussed, one of the things you said is that there is a risk that faction can run away with the legislative process but there is also a risk that a faction will conscript courts into helping them win battles they have already lost fair and square. Is that something you wrote in that article . Judge barrett i did, i was responding to an argument made by Randy Barnett in his book. Sen. Klobuchar that is what im afraid has happened. They have tried 70 times, the republicans of congress, to overturn obamacare. And now they are bringing this case to the court and you are going to be sitting on the court. And i find it very hard to believe that you didnt understand that when you wrote the article. Theres one other piece of this, and that is the effect on the economy. We all know this has been very difficult, my colleagues know this. According to one yelp study, more than 800 businesses have closed every day, 30 Million People were out of work at the height of the pandemic. We are still down 10 million jobs. One of the things that has been going on here is we have seen more and more consolidation. Leading me to antitrust. Part of this, i think is the covid release package we have to pass but also antitrust. Competition is the driving force of our economy. Justice ginsburg and her nomination hearing described the sherman act as a broad charter. She said that Free Enterprise is the spirit of antitrust law and the Court Construes statutes in accord with the essential meaning that congress had for passing them. Do you agree with her statements . Judge barrett the sherman act is broadly worded insofar as it prevents contacts, nations, and conspiracies and restraint of trade. Because that language is broad, for it to develop a robust doctrine of common law to enforce and bring about its promise, of eliminating contracts, conspiracies and combinations that restrain trade. Sen. Klobuchar yes, you and i have discussed this before but in recent years, Supreme Court opinions all decided over Justice Ginsburg dissented, have made enforcing our antitrust laws that even more difficult. As a textualist, how you reconcile the broad language of the sherman act with the narrowing of the statutes . Judge barrett lets see. I can say as a textualist how i would approach the sherman act. In the case of the sherman act, you are right, that is broad language. The text of the the sherman act, as the court has determined over time, essentially commits the essentially permits the court to develop a common law. I havent really had occasion to decide very many antitrust cases on the seventh circuit but because it has largely been left to judicial development, it is controlled by precedent for the most part. Sen. Klobuchar it is, and that is my concern right now. It is so narrow in its interpretation of the sherman act that it is almost impossible for people to bring those cases in any big way. I want to turn to something we talked about yesterday which is elections. You worked on the recount in florida that was related to the bush v. Gore case including on an absentee ballot issue on behalf of the republican side of that case, is that right . Judge barrett i did work on bush v. Gore on behalf of the republican side. To be fully honest, i cant remember exactly what piece of the case it was. Sen. Klobuchar im not going to ask you that. We are in the middle of a Global Pandemic that is forcing voters to choose between their health and their vote. Are absentee ballots, mailin ballots, and essential way for millions of americans right now . Judge barrett that is a matter of policy on which i cant express a view. Sen. Klobuchar to me, that just feels like a fundamental part of our democracy, but ok. Have you ever voted by mail . Judge barrett um. I cant recall a time that i voted by mail. Maybe in college when i was living away from home. I cant as im sitting here specifically recall a time i voted by mail. Sen. Klobuchar do you have friends or family that have voted by mail or are voting by mail . Judge barrett i have had friends and family vote by mail. Sen. Klobuchar and you understand that we are operating in a moment where the president is undermining vote by mail, a even though a number of republican governors and republican senators are supportive of it. Many argue that bush v. Gore hurt the courts legitimacy. If you are confirmed, the Supreme Court will have not one, not two, but three justices. You, Justice Kavanaugh and chief , Justice Roberts who worked on behalf of the Republican Party in matters related to the bush v. Gore case. Do you think that is a coincidence . Judge barrett senator klobuchar, if youre asking you whether i was nominated for this seat because i worked on bush versus gore for a very brief time as an associate, that doesnt make sense to me . Sen. Klobuchar i just think it is such a coincidence to me, and i actually didnt know it until yesterday. Having justices with this background, two of whom were appointed by the current president , decide any case related to the upcoming election, do you think that will undermine the legitimacy of the courts . Judge barrett asking whether something would undermine the legitimacy of the court or not seems to be trying to elicit a question about whether it would be appropriate for justices who participated in that litigation to sit on the case rather than recuse and i went down that road yesterday. Sen. Klobuchar you said you wouldnt recuse. Judge barrett that isnt what i said. Sen. Klobuchar you said you wouldnt announce your decision on recusal and you wouldnt commit to recusing. But again, i think the public has a right to know that now three of these justices have worked on the republican side on a major, major issue related to a president ial election. One thing i want to revisit v. Home. Smiley the reason i asked about that is that this would be unprecedented. Right now we are in unprecedented times where we have a president who refuses to commit to a peaceful transition of power. Working to undermine the integrity of this election. Yesterday, you wouldnt commit to recuse yourself from the case we just talked about. Now we are considering your confirmation to the highest court in the land. In the midst of this election. Home, where the Supreme Court held that a governor is part of the legislative process and therefore a legislator cannot unilaterally change election rules. That could be very important because they a number of swing states, we have legislat

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