it's your job to pass the statutes, it's your job to choose policy. and it's my job to interpret those laws and apply them to facts of particular cases. and they don't always lead me to results i would reach if i were queen of the world and i could say you win, you lose, or this is how i want it to be. because i don't have the power to impose my policy preferences or choose the result i prefer. that's not my role. i have to go with what you guys have chosen. >> why in the world would the american people surrender their right to govern themselves through their elected representatives and through the constitution to nine people who don't even run for election and who serve for life? why in the world should the american people do that? >> i think part of the rationale for courts adhering to the rule of law and judges taking care to avoid policy preferences is that

it's inconsistent with policies. nobody wants to live in the world of the law of amy, my children don't want to do that even. so i can't get up on the bench and say you have to live by my policy preferences because i have lifetime tenure and you can't kick me out if you don't like them. >> even if the supreme court strikes down a statute, congress can come back and revisit the topic and do so in a way that doesn't violate the constitution. ultimately we can amend the constitution itself, correct? >> that is correct. >> the basis of legitimacy of governmental power is consent of the governed. do you agree with that? >> i do agree with that. >> not what nine people in black robes, the high nigh on the potomac i think they're

sometimes called. that's not the word -- >> we are a law, a government of laws, not of men. >> judge barrett, i'm almost through but i can't pass up the opportunity to ask you a question about the establishment clause. i did with justice kavanaugh and justice gorsuch as well. it's borne out of my frustration, one of the times i had a chance as attorney general of texas, i argued a case called santa santa fe independent school district versus doe. this is about a practice that before football games students would volunteer to offer an invocation or inspirational poem or saying or something like that. the aclu sued the school district and it made its way to

the supreme court. i'm not going to ask you your opinion on the outcome of the case. but what troubles me the most -- what troubled me the most about that experience is when the supreme court struck down -- or held that practice unconstitutional and in violation of the establishment clause. chief justice rehnquist said the constitution requires neutrality toward religion, but the court's approach speaks of hostility toward religion. could you just talk a little bit about the establishment clause generally with -- not in regard to any particular set of facts, but sort of what the courts over time have tried to do to enforce the mandate of the constitution? >> well, senator cornyn, when i interviewed for my job with justice scalia, he asked what area of the court's precedent

that i thought, you know, needed to be better organized or that sort of thing. and off the cuff i said, gosh, the first amendment. he said, what do you mean? and i feel down a rabbit hole of trying to explain without success because it is a complicated area of the law, how one might see one's way through the thicket of balancing the establishment clause against the free exercise clause it's a difficult area of the law and to the extent there is tension in the court's cases, i'm giving you no better answer than i did to justice scalia that day, i assure you, it's something that the court has struggled with for decades to try to come to a sensible way to apply both of those clauses. >> i wish you well. >> thank you, senator. >> mr. chairman i'm going to reserve the rest of my time. >> thank you.

for planning purposes we'll have senator durbin, senator lee, break for about a half hour for lunch and come back to senator whitehouse. is that okay? are you okay with that, do you need a break? >> that's fine. >> thank you judge barrett and your family for being with us today for this marathon of questioning. >> thank you, senator durbin. >> i would like to respond to two of my colleagues quickly before i ask questions of you. who came up with this insulting notion that you might violate your oath? where could this idea have come from? could it have come from the white house or the president's tweets of what he expects the supreme court nominee to do politically for him? that's where it comes from, where it okriginated. you have said today that you would not be influenced by

president trump or this committee or anyone else. which is what we expect you to say. but this notion of this idea that you're being used for democratic purposes is a democratic propaganda, read the tweets. the second thing i would like to say is, i'm not going to spend a lot of time defending the affordable care act, although i think it's the single most important vote i cast as a member of congress period. when the chairman opened up on it and said what he did, i was puzzled. three states get 35% of the money, how can that be true? it turns out because those states decided to extend medicaid coverage to people who live in the state and his did not. as a consequence fewer people in south carolina have the protection of health insurance and those who do are paying for their services and those that don't are not. which imperils hospitals and

others in the process. so i would say there is an explanation as to why some states are spending more. incidentally, there was a republican governor of your state, indiana, by the name of mike pence, who decided to break with other republican governors and extend coverage under the affordable care act. i think it was the right thing to do for indiana and illinois. but that's part of the reasoning. let me say that the affordable care act is really at the heart of this, as you can tell on the democratic side. we believe the supreme court's consideration of that case could literally change america for millions of people. i have with me today another group i'd like you to at least be aware of, because they're pretty amazing people. this is the williams family. they live in naperville, not far from chicago. they have four sons, matt, joey, tommy and mikey. matt, who's 27 was diagnosed with type one diabetes when he

was 13, the other three boys were born with cystic fibrosis. mike's the twin tommy after the picture was taken passed away in 2019 due to m complications. here's what they wrote me. we cannot imagine having to go through losing another child. people with cystic fibrosis require access to specialized care, daily medications, that means people with preexisting conditions cannot be discriminated against. there's a ban on annual or lifetime caps and forces them to apply. people need adequate health care to live longer and healthier lives. that's why we bring it up, real people we run into all the time.

there's a chart here, too. on the republican side, there's some obvious controversy as to whether we're right or wrong. but there are a lot of people in each of the states represented by our republican senators who have their health care and literally in some cases their lives hanging in the balance, south carolina, 242,000 people would lose their coverage if the affordable care act were eliminated. 2 million living in that state have preexisting conditions. you can imagine the list goes on. here's what it comes down to, you've been critical of the decisions and we naturally draw the conclusion there's going to be a third strike when it comes to texas and california. you said it won't affect preexisting conditions if the petitioners have their way, there will not be an affordable care act to protect preexisting

conditions. so give us insight on how you can be unequivocal in opposing the majority decisions in the two previous cases but have an open mind when it comes to the future of the affordable care act. >> sure. thank you for that question because it gives me an opportunity to make my position clear. when i wrote, as a law profe professor, about those decisions i did critique the statutory interpretation of the majority opinions. as i mentioned before, my description of them was consistent with the way chief justice roberts described the statutory question. you but i think that your concern is that because i critiqued the statutory reasoning that i'm hostile to the aca and that because i'm hostile to the aca that i would decide a case a particular way,

and i assure you that i am not. i am not hostile to the aca, i'm not hostile to any statute that you pass. the cases on which i commented, we can talk at another time about the context, the distinctions between academic writing and judicial decision making those were on entirely different issues. so to assume because i critiqued the interpretation of the mandate or the phrase established by a state means that on the entirely different legal question of seventy sever means i'm hostile, that's not the case. i apply the law on the issue. >> bear with me for a couple questions. have you seen the george floyd

video? >> i have. >> what impact did it have on you. >> as you might imagine, given the fact i have two black children, that was very, very personal for my family. jesse was with the boys on a camping trip in south dakota so i was there, and my 17-year-old daughter vivian, who's adopted from haiti, all of this was eru erupting, it was difficult for her, we we want in my room and it was difficult for my daughter julia, who's 10, i had to try to explain some of this to mathem. my children to this point in their lives had the benefit of growing up in a cocoon where they have not experienced hatred or violence and for viv yen to understand there would be a risk to her brother or the son she might have one day of that kind of brutality has been an ongoing conversation. it's a difficult one for us like it is for all americans all over

the country. >> so i'd like to ask you as an originalist who obviously has a passion for history, i can't imagine you can separate the two. to reflect on the history of this country. where are we today when it comes to the history of race? some argue it's fine. everything is fine and you don't have to even teach children about the history of slavery or discrimination. others say there's implicit bias in so many aspects of american life that we have to be very candid, others go further and say no, it's systemic racism built into america and we have to be much more pointed in our addressing it. how do you feel? >> so i think it is an entirely uncontroversial and obvious statement given, as we just talked about, the george floyd video that racism persists in our country. as to putting my finger on the

nature of the problem, you know, whether, as you say, it's just outright or systemic racism or how to tackle the issue of making it better, those things, you know, are policy questions, they're hotly contested policy questions that have been in the news and discussed all summer. so as i did share in my personal experience, i'm happy to discuss the reaction our family had to the george floyd video giving broader statements or making broader diagnoses about the problem of racism is beyond what i'm capable of doing as a judge. >> i doubt that. i don't believe you can be as passionate about originalism and the history behind language that we've had for decades, if not centuries, without having some thought about where we stand

today but i'm not going to press you on that. i'm going to take you to a case, which i have read and reread, canter versus barr. you know the case well because it's already been referred to. >> um-hum. >> it clearly is a case where you had your day in court. you wrote the sole dissent. 37 pages were your dissent out of 64 pages. so you gave i assume a full accounting on your thoughts on the subject. here's the way i understand the case, a felon invented pads to be put in a shoe to relieve foot pain. he designed them and submitted them to medicare and didn't get the approval he was looking for.

instead he sold them and represented to customers they were agreed to by medicare. he was charged with fraud. when it was all said and done, rickey canter ended up spending over a year, a year and a day, in federal prison paying somewhere near $300,000 in penalties and fines and $27 million in a civil settlement on this issue. so this was not a casual wrong doing. this man was a swindler and he was taking the federal government for a ride as well as other customers and misleading senior citizens about his product and paid a heavy price for it. then he decided, having left prison, that it's just fundamentally unfair that the law says if you've been convicted of a felony you can't own a firearm. i don't know what his appetite is when it comes to firearms,

whether it's a revolver or an ak-47 with a banana clip, i have no idea. but he went to court and said, this is unfair, it was just mail fraud and you're taking away my second amendment rights. so two out of three of your colleagues then basically said, sorry, rickey, you have forfeited your right to own a firearm because of your conviction of a felony. you took a different approach. exactly the opposite approach and went deep into history. i think the earliest citation i see here was 1662 to figure out just what was going on here. and whether or not he had to have committed a violent felony to have forfeited this right to own a firearm. have i stated the facts close to what you remember? >> i don't remember the amount of the loss. some of those details, but yes, rickey cantor was convicted of selling fraudulent shoe inserts

and it was a felony. >> $27 million settlement along the way. so i'd like to take you into your thinking on this. when the heller decision was har handed down, justice scalia said i'm not taking away the authority of government to impose limitations based on felonies, felonies not violent felonies, and mental illness. he said as much. and yet this man who was your inspiration, as you told us all, you decided he was wrong and it had to be a violent felony. can you explain why? >> i can. we talked about precedence. in my court, the seventh circuit, there is precedence saying that phrase doesn't control as my colleague, judge east easterbrook said they aren't statutes and shouldn't be read so. so heller wasn't right about the

scope of the right, the applications to felonies or those who are mentally ill, et cetera. so that passage didn't dig down into it. but i applied heller's methodology and the dissent, used an originalist methodology to answer the question. i concluded based on the history, one couldn't take the right away simply because one was a felofelon. i didn't rule out the possibility that the government might not be able to make the ruling against cantor. but we ought to agree that saying because someone is is felon they lose their rights. >> i'm honored to represent the city of chicago and state of illinois it's a great city but it has problems too and one of

them is gun violence. on the average we know 100 americans are killed every day by gun fire, 40,000 per year. in the city of chicago more than 3,200 people have been shot just this year. according to the city's gun tracer report in 2017, the majority of illegally used or possessed firearms recovered in chicago are traced back to states with less regulation over firearms such as indiana and mississippi. the 2017 report found that indiana alone was the source of 21% of all chicago's recovered crime guns. we know how it works where you live. you know how it works. there's a traffic between chicago, northern indiana and michigan going on constantly. gun shows are held in gary, indiana and other places and when they're selling the firearms without background checks, unfortunately the gang bangers and thugs load up their

trunks and head to chicago and kill everyone. law enforcement is fighting it, trying to get indiana to do background checks at these gun shows with limited success. and we're trying to apply the standards to felonies and mental illness and you want to take away part of that protection with your decision in this case because if you eliminate felonies and just confine it to violent felonies, you're opening up more opportunities for people to buy firearms, are you not? >> senator you referred to gang members and thugs buying guns in indiana and taking them across the border. certainly, if they had felony convictions for doing the things that members of gangs and thugs do, nothing in cantor said the government can't deprive them of firearms and nothing says in my

opinion that the government can't deprive rickey cantor of having firearms they had to make the showing of dangerousness before they did so, simply. and gun licensing and background checks are separate issues. >> but the majority zeros in and says what you said is impractical. we're going to go case by case and decide what kind of felonies and person. then they go on to produce evidence, i can read the numbers but you know them because you wrote the dissent, where the likelihood of committing a violent felony after committing a felony is higher. they're saying don't make us go case by case. you're aware of the fact that those who aren't, quote, violent felons have a propensity to commit violent felonies in the

future, are you not? >> there was no evidence of that in the case. we, on courts -- for example, the armed career criminal act that's a federal statute, has to make judgments all the time about what counts as crimes of violence. i don't think that's beyond courts to identify which felonies are violent and which felonies are not. >> so let's -- excuse me, let's go to paige 21 of the opinion. they quotedian si, most pefelon are not violent. but one study, 210,000 nonviolent offenders were rearrested within three years. the evidence is there for the

court to consider and you ignored it. >> i didn't ignore it. as i recall, the evidence in the studies were unclear. and let's see, i can't remember, as i'm sitting here, the details of all the statistics. but i did consider it and i agree saying something in the opinion about the reliability of those studies, because they didn't say whether someone had been convicted of a nonviolent crime but later convicted of a violent crime as well. felonies cover a broad range of things, including selling pigs without a license in some states, redeeming too many bottle caps in michigan. felonies cover a broad swath of conduct not all of us seems indicative of whether someone is likely to abuse a firearm. >> i'm not going to go so far back in history. but i'm going to take you back in history for a moment. and note when that second

amendment was written, and you did the analysis of it we were talking about the likelihood that a person could purchase a muzzle loading musket we are now talking about military weapons that could kill hundreds of people. maybe an originalist pens their thinking to that musket but i have to bring it to the 21st century and that has people being killed on the streets of chicago because of the proliferation of deadly firearms. but let me bring it closer to hope and tie up the george floyd question. there's a question of whether the commission of a felony disqualifies you from voting in if america. and the history of that is clear. in an article it was found that many felony voting bans were passed in the late 1860s and 1870s when implementation of the 15th amendment and the extension

of voting rights to african-americans were contested. it still goes on today. but we know in reconstruction, the jim crow era, covid era, that was used. a felony conviction was used to disquali disqualify african-americans from voting in the south. it's found more than 6 million americans can't vote because of a felony conviction and one out of 13 black americans have lost their voting rights. 234 your dissent you said disqualifying a person from voting because of a felony is okay, but when it comes to the possession of firearms, wait a minute. we're talking about the individual right of a second amendment. what we're talking about in voting is a civic right, community right, however you define it. i don't get it. you're saying a felony shouldn't

disqualify rickey from buying an ak-47 but using a felony conviction to deny them the right to vote is okay? >> what i said is the constitution conde constitution contemplates that states have the freedom, but i expressed no view on whether that was a good idea, whether states should do that. i didn't explore, in that opinion because it was completely irrelevant to it, what limits if any there might be on a state's ability to curtail felon voting rights? >> did you not distinguish the rights, calling one an individual right under the constitution and the other a civic right? >> that's consistent with the language in the historical context, the way the briefs described it and it was part of the dispute in heller whether the second amendment was an individual right or a civic one that was possessed collectively for the sake of the common good

and everyone was treating voting as a civic right. >> i will tell you that the conclusion of this is hard to swallow. the notion that mr. cantor, after all that he did, should not be slowed down when he's on his way to buy a firearm, my goodness, it's just a felony, not a violent felony he committed and then to turn around and say well, when it comes to taking away a person's right to vote, that's a civic duty. that really goes back to the original george floyd question. that was thinking in the 19th century that resulted in voter suppression and taking away the right to vote from millions of african-americans across this country and it still continues today. i think the right to vote should be given at least as much respect as any second amendment right. do you? >> senator, the supreme court has repeatedly said that voting is a fundamental right and i

agree you a-- fear you are taki statement out of context. it was a descriptive statement of the state of the case law comparing it to stripping fel y felonies of second amendment rights. i spare no view of whether the law should change with respect to voting rights. obviously that's a contested issue in some states, i have no view on that and it wasn't the subject of cantor. >> it wasn't the subject of the case, that's for sure. but in your writings you raise this. it was part of your dissent discussing the right to vote and felony conviction eliminating it. i'm afraid it's inescapable. you have to be prepared to answer this question. i read it and thought i can't imagine she's saying this. i'm afraid i was left with a suggestion you might. which brings me to conclusion here. we hear from the other side of

the aisle we don't want any activist judges. we want judges going back to the original document, take it word for word, put it in historical context and don't get in the way of making laws. we make the laws. you're a judge, stay away from them. when we look at this case, the information to of what disqualifies you from buying a firearm what was written by the dissenting judge, the word violent wasn't in there. it's not the only time it's happened. republican judges struck down campaign finance reform to unleash a flood of dark money to our system. part of that flood is paying to the ad campaign promoting your nomination to the supreme court. i know you said you've gone radio silent fog tllowing the media, i don't blame you.

but they are beautiful ads boosting your support from organizations we've never heard from that. in shelby county conservative judges gutted rights, going back to the george floyd moment unfortunately a lot for racial purposes. these are a few examples i've given of activist judges rewriting the law, abolishing the law. as i said to you on our phone conversation, i don't think you put the facts here and law here and nine justices come to the same conclusion. people see things differently based on their backgrounds, values, experience. and i think it's simplistic to think this is a robotic performance once we put a judge on the bench, they go back, read the constitution and rule. it's not that simple, i think

you acknowledged it saying originalists disagree with each other is that true? >> yes. people who look at the law from different perspectives will reach different results. every vote from the supreme court isn't unanimous -- sometimes it is but cases don't get to the supreme court unless the circuits disagree among themselves. but it's hard. but to the extent you're suggesting i have an agenda on felon voting rights, guns or something else i can assure you and the whole committee i do not. >> i didn't say that and will not say that. but i will say you come to the supreme court with life experiences. you come to the supreme court having read a lot, i'm sure, and drawn some conclusions in your own mind about certain things and certain issues. everyone on the court has that same background.

they bring something to it that is not generic, it's individual. that's the point i'm making. there's an individualism to this, the class of originalists on the supreme court are not going to vote the same on every case. i think saying originalism does not absolve you or us from observing the obvious, there are going to be differences. would you like to say something? i don't want to cut you off. >> no, that's okay. >> thank you very much. >> thank you, senator. >> we'll go to senator lee and after that we'll take a 30-minute lunch break and start back with senator whitehouse. >> thank you, mr. chairman. i have two letters for the record that i would like to have admitted, offered by former law clerks of judge barrett's. >> without objection. >> i would encourage all of my colleagues to read them. they provide insights into judge barrett's qualifications. moments ago we went through a rather interesting set of

exchanges. one of my colleagues, i hope i misunderstood him, seems to have suggested that it's a political talking point for you to decline to indicate how you would rule on a particular case or particular type of case. to the extent that that's what any colleague has suggested, i remind that colleague that's just wildly incorrect. it's wildly incorrect with federal law, with the statement laid out by justice ruth bader ginsburg in her own confirmation proceedings before this very body in this very room nearly 30 years ago. it is imperative that you uphold those standards and i applaud you for doing so. i think on no planet is it appropriate for anybody to suggest that's a political talking point for you to say i'm

not going to indicate how i'm not going to rule in a particular case. justice ginsburg did, in fact, say it well and some of this has been quoted today i'm going to quote it again for good measure she said judges in our system are bound to decide concrete cases not abstract issues. a judge sworn to decide impartially can offer no forecast, hints for that would show not only disregard for specifics of a case it would display disdain for an entire process. similarly because you're considering my capacity for independent judging. my personal views on how i would vote on a publically debated issue were i in your views, a legislator, are not what you will be closely examining. that's what she said, she said it well. it was true in 1993, and it remains true today. i want to turn next to a line of

questioning that you just finished. that you just completed. i too have read the cantor case. and i am thrilled that we've got a jurist who is willing, when looking at somebody whose constitutional rights are about to be taken away, thrilled to have a juryiist who's willing t consider a review for that individual. is it unusual, judge barrett, to consider someone's constitutional rights on an individualized basis before having a specifically enumerated constitutionally protected right removed? >> that would be very, very unusual. >> unusual and it would be unwise, would it not? >> well, i think what i could say to that, to be careful about how much law i'm naldsing is that the 14th amendment guarantees due process before a

liberty is taken away. >> i appreciate the analysis you undertook making sure that our rights in this area don't just date back a few decades. they don't just date back to the '60s, to the 1780s or the 1760s. they date back to the 1660s. they go way, way back. there's a lot of history that went into what became the second amendment. there were conflicts that involved not just partisan conflicts but conflicts between the king and subjects. and not just between the king and subjects in the abstracts but often between catholics and protestants. there was a lot of violence that went into that and that went into the adoption of our amendment. i appreciated your analysis of this, the willingness to be thorough to make sure when someone's rights are taken into account you're going to do your

health care, do your homework even if it's hard, if you have colleagues who aren't willing to go there, that's what judicial leadership is, it involves willingness to stand alone. judge barrett, one of the things that came out to me as i read your opinion in the cantor case, is that your commitment to textualism is the kind of thing you can't fake, make up at the last minute. i agree that that doesn't guarantee that a particular result, a particular outcome in a particular case. but it does indicate a style, a preference, tell me where can textualism and originalism are important to you. >> because i think that both statutes and the constitution are law. they derive their democratic

legitimacy in the fact they've been enacted through the constitution making process. and i, as a judge have an obligation to respect and enforce only that law that the people themselves have embraced. as i was saying earlier, it's not the law of amy, it's the law of the american people. i think originalism and textualism to me boil down to that, a commitment of the rule of law, not disturbing, changing or update or adjusting in the line with my own policy prere preferences what that law requires. >> is it the motivation, intent of a lawmaker that we're looking at or is it the original public meaning, what's the difference between the two? >> it's original public meaning not the intent of any particular drafter. so one thing i have told my students in constitutional law is that the question is not what

would james madison do. we don't -- we're not controlled by how james madison perceived any particular problem. that's because the law is what the people understand it to be, not what goes on in any individual ledgislator's mind. i respect you senator lee but what you think in your mind rather than what passes both houses, that's the law. not any private intentions you have. >> so regardless of what -- let's say i pass bill x, y, z and i'm the sponsor of it and i take it down to the floor. here's the bill, here's what i think about it, here's what i intend to do with it and i put that statement into the legislative record, what, if any, impact should that statement have on the meaning of law x, y, z, once it becomes law?

>> nothing. legislative history is not what goes to presentment. >> regardless of how passionally i make that point in support of the bill, it doesn't make a darn bit of difference, does it? >> it doesn't. i'm sure the speech would be glo glorio glorious. but you are functioning as an advocate but not speaking with the voice of the lawmaker because no individual does. it's the full body that speaks. >> i want to speak next about the affordable care act. we've seen posters going up, other a over and over and over again. we've seen them yesterday, today, a lot of compelling stories about people whose lives have been marked by difficult things that they've endured.

they've involved touching and heart warming stories. i continue to doubt the relevance of things like that here. especially in so far as they're being used to suggest that your confirmation to the supreme court of the united states has anything to do with their health care. tell me why you think that any individual americans' health care status is or is not tied to your confirmation to the supreme court of the united states? >> it is not tied to my nomination to the supreme court of the united states, i have said repeatedly under oath that i had no conversations with anyone in the white house about that case. and i'm not sure to the extent there's a suggestion that i have an agenda that i want to strike down people's protection for preexisting conditions, that's just not true. i've never taken that position,

and as i also said repeatedly, any policy preferences that i have are irrelevant. making that law, coming out with the contours of the aca is your job. >> it's the job of policy making branchs of government. it's the job of whatever combination of state and federal lawmakers and other policy makers have. a judge is not a policy maker. when congress passes a law, congress is in charge of making sure that that law works. in so far as that law doesn't work or it is stricken down it's our job to replace it with something that does work. that's our job, not yours. you made some comments a few years ago, comments with which i agree, raising a criticism with

chief justice roberts and his majority decision in nfib, a decision -- don't worry i'm not going to ask you to weigh in on this, you made the comments at the time and they're not relevant to me now. but i set this up for reasons i'll explain in a moment. he rewrote the affordable care act not just once but twice in substantive ways, in order to save that law from a finding of unconstitutionali unconstitutionality. because that law as written by this congress was unconstitutional in respects at issue. blatantly unconstitutional. he acknowledged that the law as written couldn't pass constitutional muster so he rewrote it not once but twice in order to save it. that's water under the bridge. that happened, it's inexcusable

that he did that, he misused the judicial authority. that case has absolutely nothing to do with california versus texas. it has absolutely nothing to do with the question of severability in that case. would it be fair to say that my strong opinions that i've just expressed do not indicate how i would lean were i a jurist in california versus texas? >> i think you're correct senator lee that the question, the legal issue is entirely different in california versus texas. severability is its own doctrine and has noithing to do with the questions in sebalius. >> we see emotionally charged issues in this country that boil and boil for a long time, they can't always be resolved. not everybody is going to agree

on everything. not everybody is going to agree on certain hot button social issues that result in some cases from just basic differences in how people view life and how people view their place in the universe. one of the areas it manifests itself is in the area of abortion. people view life and when it begins differently. some of that is informed by religious beliefs. some is informed by people's common sense approach to what they think the law ought to say and what it ought not to say. disputes regarding when life begins and disputes regarding abortion didn't begin with roe v. wade. what did change with roe v. wade, however, was the federalization and the grasping of the issue. and the taking it beyond the realm of political debate within

the federal judiciary. such that elected lawmakers were no longer in a position to be the primary drivers of policy. as a result, over the last few decades, we've had all kinds of questions that have been put into uncertainty. you have uncertainty by people at the state level who want to make their own decisions about certain things around abortion. they know they can't prohibit it, entirely. they know there's this undue burden, standard that has to be addressed, nobody is sure in advance what that means so they work around it, there are discussions that arise regarding health and safety for abortion clinics, how close it needs to be to a hospital, how it needs to be staffed. what the sanitation protocols are. then you have more recently some states passing laws saying look,

there's abundant medical science showing that an unborn human can feel and respond to pain as early as i don't know ten or 12 gestational weeks but certainly by 20 weeks so by 20 weeks we'll adopt a different set of legal procedures for an abortion as a result of that because if this is a human that everybody agrees can feel and respond to pain we ought to handle that differently. all of those things, the legitimacy of those laws are thrown into the federal courts yet again all because those were made federal issues. i want to be very clear, you have the impression from watching debates in circumstances like this one and in protests outside the supreme court of the united states, you'd have the impression that if roe v. wade didn't exist,

that all of a sudden abortion would immediately become illegal in every state in america, that assumes a lot of facts not in evidence. that assumes a lot of things contrary to evidence. it is not the -- it is simply not the case that the fate of health care in america turns on whether or not someone is confirmed to the supreme court of the united states nor is it a fact to suggest that the availability of an abortion or lack thereof is contingent upon anyone's confirmation to the supreme court of the united states. the fact we have this debate and the fact that it's become as protracted as personal as ugly as it has, could, i suspect, be traced to the fact that we've tried to take a debatable matter beyond debate and take it beyond the political branchs of

government where people can elect their representatives and have laws respecting and reflecting the views of their representative communities. we're a country of, what, 330 million americans. it's really, really difficult to have those 330 million americans reflected in nine members of a supreme court. it is still really hard to have them reflected in 100 senators and 435 representatives. that's doable, especially when those people are elected. they stand for election every couple of years, in the case of the house every six years, in the case of the senate, doesn't happen that way in the supreme court of the united states. so to my colleagues on the other side of the aisle who are fear mongering on this, causing people to worry, lose sleep over this, fundraising over this, fundraising over threats people will lose their health care, fundraising over threats that

people are going to be dying in the streets because of lack of availability of this, that medical procedure, i would ask. have we created a monster? have we, ourselves, through our own inaction, through our own voluntary cessation of authority to a nonlegislative, nonpolitical branch, have we created the very set of untenable social circumstances that are causing people to protest outside of a nonpolitical entity. i think we have to ask ourselves that question from time to time. life is in fact valuable. it's not a religious statement to make that observation. in fact, it is the foundation of basically all of our laws, not just in this country, not just in countries with christian origins, but in basically every country that has ever existed anywhere in the world.

a purpose of government is to protect life. that's what it's about. if we can't agree on the fact that it is reasonable that people ought to be able to have some say, at least at some limit, at least at some point beyond the moment when an unborn human can feel and respond to pain, something is wrong with us. and if we're going to leave those things perfect ppetually hands of the unelected, might be for fundraising in congress but it is not good for the united states of america. it is not good for constitutionally limited government. it is not good for our individual liberties. judge barrett, alexander hamilton was preshent in a number of areas, had some crazy ideas, did some crazy things. he was also freaking brilliant.

i think he foresaw certain aspects of our lives when he described the differences between the branches of government in federalist 78. in federalist 78 he said that the legislative branch, congress, being a political branch, a branch whose job it is to make policy, to make law, is possessed with will, and that what's possessed of a judicial branch is not will but judgment. he then went onto explain that it is really important to maintain that clear distinction between will and judgment, lest you have the judicial branch consisting of people that are not elected by the people, not accountable to the people at regular intervals and who serve basically the rest of their lives so long as they're on good behavior. you can't have them exercising will because it is not their

job. what do you think he meant? what's the difference between will and judgment? >> i think willis the imposition of policy preferences as happens in the making of law. judgment is evaluating that law for its consistency with the constitution, for example, or to give another example, to interpret what that law means, but it most certainly is not the imposition of policy preferences. a judge who approaches a case as an opportunity for an exercise of will has acted, has betrayed her judicial duty. >> how does she know when she has reached that point? >> um, so i think it requires disciplined judicial decision making. so you approach the text, you treat it as a text, you treat it as law. you know, i described

originalism and techs actualism, i won't belabor that point. i will say one practice that i have, one check that i put on myself to make sure i am not biased is that when i write an opinion, i try to read it from the perspective of the losing party so that any sympathy that i might feel for the particular result that i reach, i try to make the sympathy run the other way to see if it will still hold and also to see, like, you know, i would be disappointed in this outcome if it was my child whose sentence or criminal conviction or civil loss, whatever it is, is on the line. but would i still think it was a well reasoned opinion. and that's the test that i use for myself. i think discipline is required but i take it very, very seriously. >> as we have this conversation today, one of the arguments that's been made by some of my

colleagues is referred to activism and has accused if i understood the argument correctly some techs actualist original jurists having engaged in activism. i want to be clear, i am one who doesn't believe there's anything worse about an activist judge than a passivist judge. i think it is every bit as bad to be a passivist, that is, for example, to let stand an invalid, unconstitutional law as if it were valid and constitutional. every bit as bad to do that as it is to invalidate as unconstitutional something that is, in fact, not

unconstitutional. would you agree with me, both of those are equally instances of bad judging? >> they are both instances of as you posed them of not following the law. not following the constitution or not correctly interpreting a statute. >> by the same token, a judge who fails to grant a meritorious dispositive motion and the judge who grants a nonmeritorious dispositive motion, they both have probably done an equally bad thing, is that right? >> yeah. does the constitution say anything about the size of the supreme court? >> the constitution does not. that is a question left open to congress. it is my understanding it is benign for 150 years, as a matter of statute, not constitutional requirement. >> statutory decision, one that stood for more than a century

and a half. it's a decision nonetheless that has some bearing, could have some bearing on constitutional issues. >> insofar as there would be more decision makers on the court? >> if we abandon the long-standing historical practice and tradition of having nonjustices, could that have impact on the way the three branches of government interact with each other? >> possibly. but it is difficult to imagine what specific constitutional question you're asking. >> of course. there are strong reasons, i believe, why over the last more than a century and a half we left that number at nine. as you point out, there's nothing in the constitution that requires it. we could come up with any number we wanted. there has to be a supreme court,

inferior courts as we choose to create, but doesn't specify the number of seats that can be on there. there are, nonetheless, good reasons, reasons having to do with respect for the separation of powers between the three branches of government, reasons that have over the last 150 plus years left us tomorrow leave that number at nine. last time as far as i can tell there was any serious effort to move the number above nine was fall of 1936 when president franklin d roosevelt got tired of the four horse apocalypse, members of the supreme court that were consistently voting against his agenda, and sometimes joined by one or more other members of the supreme court. he got particularly tired of this. so he proposed packing the court. let me explain what i mean by packing the court here. what i mean when i refer to this is increasing the number of seats on the supreme court and

doing so by statute with the intent of altering the composition of the court for short term political gain. that's what fdr wanted to do. notwithstanding the fact that he had an overwhelming super majority in both houses of congress, fortunately, fdr's idea he pushed in the fall of 1936 didn't make it anywhere. it didn't gain progress. it met enough opposition with both houses of commerce being overwhelmingly controlled by his political party, that it stalled. quite mercifully. joe biden himself as a u.s. senator, as a member of this body in a proceeding of the committee in 1983 gave a rousing speech that i recommend to all, talking about that very thing. acknowledging that the