equality case that it wasn't the role of the cart to decide that same-sex couples had the right to be married. i think this was in a lecture you gave where you said the dissents view it wasn't for the court to decide. people could lobby in state legislatures and all of this takes me to one point as i follow those tracks. down that path. it takes me to this point where i believe and i think the american people have to understand that you would be the polar opposite of justice ginsburg. she and justice scalia were friends, yes, but she never embraced his legal philosophy. so that is what concerns me, and i want to turn to an area that, where i think justice ginsburg, whose seat we are considering you for, was truly a hero and that was the area of voting rights. and that was the area of

elections. i think that -- what did the president say here? he said -- september 23, 2020, i think this, he means the election, will end up in the supreme court, and i think it's very important that we have nine judge ises. i don't think how much clearer we can be. as i said yesterday, i do not for a minute concede that this election is going to end up in the supreme court, because people are voting in droves as we speak, but that is what is on the mind of the man who nominated you for this job. then he said, on september 29th of 2020, i think i'm counting on them, he meant the court, to look at the ballots indefinitely. so i know you said earlier in questions from senator leahy that you are not going to commit to whether or not you are going to recuse yourself from any kind

of an election case, but i do want to point out that as the president has said these things and as he has nominated you, that people are voting right now. they are voting as i said in droves. do you know how many states where people are voting right now, judge? i think one of my colleagues said it. >> i don't know. >> it's more than 40 states. people are voting right now as we speak. i think something like 9 million votes have been cast. do you think it is faithful to our democratic principles to fill a supreme court vacancy this close to an election when people are still voting? >> senator klobuchar, i think that is a question for the political branches. >> okay. that's your trite answer in that

way. beyond this immediate election i want to turn to the supreme court's critical role when it comes to the right to vote. this area where justice ginsburg was such a champion. senator durbin went over your dissent at length in canter v. barr where you drew a distinction between individual rights and civic rights, and you wrote that historically a felon should be disqualified from exercising certain rights, like the right to vote and to serve on juries. so my question is this -- actually this next line, where you said, these rights belonged only to virtuous citizens. what does that mean? >> senator, i would need to look at the tore clarify. as i'm sitting here i don't think i said felons should look

votes rights. >> could. >> yeah. it was an article to be clear. this was your dissent? >> i'm sorry. >> dissent in canter and it says felons could be disqualified from rights to vote and serve on juries, but apart from that clause you said, these rights belong only to virtuous citizens. that's what i'm trying to understand what that means. >> so the argument in the case, those who were challenging heller and those arguing on the side of the government and the canter case is that the second amendment is a civic right. and that is how the supreme court itself framed the debate, as a distinction between civic rights and individual rights, with voting being a civic right and in literature, in historical literature that was which was at flay that case --

>> how would you define the word virtuous? it doesn't appear in the constitution? i just want to know what that means. we live in a time a lot of people have having voting rights taken away from them, what's virtuous? >> to be clear not in the opinion to denigrate the right to vote, which is fundamental. the distinction between civic and individual rights is one that's present in the court's decisions and it has to do with that of a jurisprudential view and the virtuous citizenry idea is a historical and jurisprudential one and certainly does not mean that i think that anybody gets a measure of virtue and whether they're good or not or allowed to vote. that's not what i said. >> ask you in a different way and go to the real world. in justice ginsburg dissent in shelby striking down a key provision of the voting acts right she described voting the fundamental flight our democratic system. i assume you agree.

you just said, you ay glee wi g fundamental right? >> as i just said -- >> also she wrote the constitutions uses right to vote in 14, 15, 19th and 26th amendment. still her talking, not me. each of these amendments contains the same broad empowerment of congress to enforce the protected right. the inplacation is unmistakable. under our constitutional structure congress hold the lead rein in making the right to vote equally real for all u.s. citizens. do you agree with justice ginsburg's conclusion that the constitution clearly empowers congress to protect the right to vote? >> senator that would be elic eliciting an opinion whether the discenter or majority was right in shelby county and i can't

express a view on that as i said inconsistent with the judicial role. >> you go out of your way in the case that dick durbin was discussing to make this distinction between voting rights and gun rights but now you won't say whether or not you agree with ginsburg, and so my view is just based again following those tracks on this case, that you are most likely with the majority but i know you're not going to answer this, but i want you to know is this -- and this is where it gets interesting, because of what justice ginsburg predicted in that dissent. according to the brennan center over 20 states since that case came out, that withdrew, that took away part of the protections from the voting rights act over 20 states have now made more restrictive voting laws than before that case. doesn't that suggest to you justice ginsburg had the better of the argument when she wrote

that throwing out pre-clearance when it had worked and is continuing to work to stop sdremen in aer to changes is like throwing away your umbrella in a rainstorm because you are not getting wet? do you think -- that that's true? i mean, seems to me that the proof is in the pootd iudding. basically this rainstorm has come with all of these states including a number of them that my colleagues over there represent have enacted stricter laws? la has it happened? >> senator klobuchar, clarifying you said i was answering senator durbin's questions about the second amendment refusing to answer yours. i want to clarify i have written canter versus barr and talking about it. since i didn't write shelby i can't really talk about it. anything i've written or talked about i would be happy to answer your questions. >> okay. all right. but, again, just seems to me you

are went out of your way on this case and this is a case so real for so many people right now, and that while you can say it's a fundamental right, the issue is that this case and the voting rights act are so key, and let me just say why. we're talking about the entire foundation of our democracy here. for centuries americans have fought and died to protect the right to vote. so what matters is not just what you say about its being fundamental, it's what you do. states like south carolina, texas, north carolina, louisiana, tennessee, have policies that make it harder for people to vote and it's a real-world thing before the supreme court. back in may voters in wisconsin standing in line in the middle of a pandemic in homemade masks in garage bags just to exercise their right to vote, 70 of them got covid because we didn't know enough about it back then

because the president hadn't told us what he knew and he didn't know enough to protect those voters. ends up at the supreme court. what did justice ginsburg do? when the republican appointed majority on the court ruled voters in wisconsin could not have more time to get their ballots in during the pandemic, she called them out in her dissent. in her blueprint for the future, and she said the majority opinion boggled the mind. so what boggled my mind, well, two weeks ago the u.s. supreme court reinstated the south carolina requirement that male-in ballots must have witness signatures, in the middle of a pandemic. you've got to go and get a witness. in texas, republicans have argued that the pandemic wasn't a good enough reason to let people under age 65 vote by mail. despite the fact that over 42,000 americans under 65 have died from covid. and the governor is right now

forcing that state to have only one ballot box per county. including in harris county where there are 4.7 million people, and for those of you that thought a judge took kash of it care of a it few days ago? he did. yesterday three trump appointed judges came in and reversed and we're back to one ballot box in a county of 4.7 million to drop off their ballots. in tennessee, we is secretary of one of our witnesses at a rules committee hearing and they argued in court that covid-19 is not a valid excuse to vote by mail. in north carolina, the supreme court struck down a court component of the voting rights act. what happened? well, states like north carolina passed laws that were so egregious to make it harder to vote that the fourth circuit struck down their law noting it targeted african-americans with

almost surgical precision. so that is what the stakes are and what-othat is why not havin justice ginsburg on the court right now is so frightening to so many americans out there. and that is why we are asking you these questions about voting. so let me turn to another election question, gerrymandering. in 2015, justice ginsburg wrote the majority opinion in arizona state legislature, the arizona independent redistricting commission, holding that it was constitutional for the people of arizona to amend the state constitution to establish an independent redistricting commission, because of this case and justice ginsburg's opinion, many argue now that arizona has fairer electoral maps. the decision was 5-4. here's your example. and now justice ginsburg and justice kennedy are no longer on the court. my question is this --

must state legislatures abide by their own state's constitution exercising their authority oundound under the elections clause? >> senator klobuchar, that would be eliciting an opinion whether i agreed or disagreed with the results in that case. >> is it constitutional for voters to amend a state constitution to establish the civic processes for elections like voters in arizona did to stop gerrymandering? >> again, you're asking me for a view on that particular case, and justice ginsburg herself gave the most famous articulation of the principle that constrains me from doing so. no hence forecast or previews. i can't express a view on precedent or how i would decide any question that was provoked by the politicians of that precedent to a later case. >> lack wiest a contractor from outside of my state of minnesota started recruiting poll watchers with special forces experience. uh-huh. to protect polling locations in

my state. this was clear voter intimidation. similar efforts are going on around the country. soliciting by president trump's false claims of massive voter fraud. something that by the way many republican leaders including michael steele, the former head of the republican party including tom ridge, including governor kasich, including sitting senator romney have made very clear it's not true. so as a result of his claims people are trying to get poll watchers, special forces people, to go to the polls. judge barrett, under federal law is it illegal to intimidate voters at the polls? >> senator klobuchar, i can't characterize the facts in a hypothetical situation, and i can't apply the law to a hypothetical set of facts. i can only decide cases as they come to me litigated by parties on a full record after fully

engaging precedent, talking to colleagues, writing an opinion, and so i can't answer questions like that. >> i'm make it easier. 18 u.s.c 594 outlaws anyone who intimidate threatens any other person for the purpose of interfering for the right of such other person to vote is a law on the books for decades. do you think a reasonable person would feel intimidated by the presence of armed civilian groups at polls? >> senator klobuchar, you know, that is eliciting. i'm shnot sure about illicielic opinion or just an opinion as a swin, but not something appropriate for me to comment on. >> okay. here the one i think is, selection of election, electoral college electors. you know that each state has laws that dictate how elector

college electors are selected. supreme court some smiley b. holm ruled the minnesota state legislature could not change election rules unilaterally. do you agree that the unanimous opinion in smiley v. holm, never questioned by any other supreme court case is settled law? >> i'll say two things about that. first of all i was not aware of that case. you've taught me something. secondly, i can't comment on the precedent, give thumbs up or thumbs down in justice kagan's word. >> end there with precedent. a good way to end here. so you wrote in your 2013 texas law review article that you tend to agree with the view that when a justice's best understanding of the constitution conflicts with supreme court precedent or case law it is "more legitimate for her to follow her preferred view rather than apply the

precedent" and i want to run through a few examples. brown v. board of education. as we know that holds that the 14th amendment prohibits states segregating schools on the basis of race. is that precedent? >> yes. >> can't be overruled? >> well, that is precedent. >> uh-huh. >> as i think i said in that same article, it's super precedent. people consider it to be on that very small list of things that are so widely established and agreed upon by everyone, overruling simply don't exist. >> okay. well you also separately acknowledge that in planned parenthood v. casey the supreme court's controlling opinion talked about in the reliance interests on roe v. wade, which it treated in that case a super precedent is roe a super precedent? >> how do you define super precedent? >> actually i might, i thought some day i'd sit in the that

chair. i'm not. i'm up here and asking you. >> people use super precedent differently. the way it's used in the scho r scholarship and the way i used it was to define cases so well settled that no political actors and no people seriously push for their overruling. i'm answering a lot of questions about roe which indicates that roe doesn't fall in that category and scholars across the exec trum say that doesn't mean roe should be overruled, distributetively it means it's not a case that everyone accepted and doesn't call for its overruling. >> so here's what's interesting to me. you said that brown is, i know my time is running out, is a super precedent. that's something, the supreme court has not even said, but you have said that. so if you say that, why won't you say that about roe v. wade? the case that the court's controlling opinion in that planned parenthood casey case described as a super precedent?

what i'm trying to figure out. >> well, senator, i can just give you the same answer i just did. i'm using a term in that article that is fro the scholarly literature it's actually one developed by scholars who are certainly not conservative scholars who take a more progressive approach to the constitution and, again, as richard fallon from harvard said, roe is not a super precedent because calls for its overruling have never ceased but it doesn't mean roe should be overruled. it just meaners it doesn't fall on the small handful of cases like margaret versus madison and brown versus the board that no one questionsly inmore. >> is the united states and virginia military, is that super precedent? >> senator klobuchar, if you'd continue to ask questions about super precedents that aren't on list of the discussed in the article well established in constitutional literature every time you ask the question i have to say i can't grade it.

>> okay. well, i am left with looking at the tracks of your record and where it leads the american people and i think it leads us to a place that's going to have severe repercussions for them. thank you. >> senator s sass. >> i'm 11th of 22. before i begin my questions, i'd like to ask unanimous consent to admit into the record a letter from historian at princeton written a letter to committee in response to some of senator harris' claims about the histories of supreme court vacancies back to the civil war? >> without objection. >> thank you. judge you have said the meaning of law doesn't change with time, and you've said that's very important. can you unpack for us why it's so important that the meaning of a law doesn't change with time? >> sure. because the law stays the same until it is lawfully changed.

talking about a law that han been enacted by the people's representatives, you know, or gone through the process of constitutional amendment or constitutional ratification, it must go through the lawfully prescribed process before it's changed so article v in the context of the constitution or by presentment in the context of statutes and not up to judges to short-circuit that process by updating the law. that's your job. >> but laws clearly are written in a context and then the things, the circumstances, to which those laws applied would change. does the fourth amendment have nothing to say about cell phones? unreasonable search and seizure, obviously not written in a time they imagined mobile technological devices that addicted our kids, does the fourth amendment have nothing to say about cell phones? >> no fourth amendment. constitution, longest lasting

constitution in the world because it's written at a letter of generality specific enough to protect rights but general enough to be lasting. so that when you're talking about the constable banging at your door and in 1791 as a search or seizure, now we can apply it as the court did in carpenter versus the united states to cell phones. so the fourth amendment is a principle. it protects against unreason ap searches and seizures but doesn't catalog instances in which and unreasonable semp aar seizure could take place. take the principle and apply to modern technology like cell phones, what if technological advances enable someone with superman x-ray vision to simply see in your house? no need to knock on the door and go in. i think that could still be analyzed under the fourth amendment. >> so i think this is a useful place to explain to the american people again, what originalism is and why it's a mistake to

view it as a republican position? i think that originalism is a part of a jurisprudential debate not a part of a policy continuum between republicans answers democrand democrats but useful for everybody that believes three branches of government have two that are political and one that is not. maybe it's useful to back up and say, when you define yourself as an originalist, what does that mean? and then how's it going to relate to that distinction between the principles that are timeless but the applications that are clearly going to change by circumstance? >> right. so originalism means that you treat the constitution as law. because it commits these texts to writing. and in interpreting that law you interpret it in accord with the meaning that people would have understand instituted it to have at the time it was ratified. and the reason that you do that is because otherwise, as i said, the law stays the same until it's lawfully changed.

otherwise, jichs wou judges to the constitutional convention business of updating the law rather than allowing people to take control of that. now, in the case of the constitution, as i said, with the fourth amendment, many of its principles are more general. unreasonable searches and seizures. free speech. those are things that have to be identified or flushed out or applied over time so the financial market that there wasn't the internet or computers or blogs in 1791 doesn't mean that the first amendment's free speech clause couldn't apply to those things now. it enshrines a principle and we understand the principle as it was at the time. but that it's capable of being applied to new circumstances. >> so when you define yourself as an originalist, what are the other schools of thought that are adjacent to it? and how do you think about the

debates among those with other people that are now with you on the seventh circuit, for instance? >> sure. well, senator, one thing worth pointing out is that in the academy, any event i spent a large portion of my career, originalism is not necessarily a conservative idea. there is a full school of thought. so originalists are now very diverse lot and in is a school of originalism that's more of a progressive originalism, and it's very committed to keeping the constitution's meaning, just interpreting texts the way all originalists do to say it has the meaning it had at the time ratified but tend to read it at higher level of generality. all originalists don't necessarily "glee. in fact, there's an advocacy group which routinely filed briefs in the supreme court calling itself -- it writes

briefs in support of originalism taking it from a more progressive standpoint. i think probably people think, oh, it's only conservists who are originalists but actually it's a more widely accepted view than that. i think that if you think about different strains of approaches constitutional text, originalism is one all judges and justices take account of history and the original meaning. it's just that some weight it differently whereas originalists give it dispositive weight when discernible. other approaches to constitutional interpretation may take a more pragmatic view, and say in some instances, well, that may have been the historical meaning, but nats th uncomfortable meaning for current circumstances and we'll tweak it to adjust it to fit these circumstances, that situation. sometimes called living constitutionalism, constitution can evolve and change over time.

sometimes it's called like a more pragmatic constitutionalism. >> so i just, want to make sure we establish this fact clearly together. because one of the things that i think is really unhelpful for the american people when they see hearings like this over the last 20 years there is an assumption those of us who advocated for you over the course of the last three years must be doing it because we know something about your policy views and we've seen the beautiful mind conspiracy theory charts, for instance, that this is about specific outcomes that people want. what i want is to have a judge who doesn't want to take away the job of a legislature that's accountable to the people. what i want is to be sure the two political branches that are accountable to the people because they can hire and fire us are the places where policy decisions are made. so what you're saying is in the legal academy, there are people who agree with you on originalism as a broad philosophical school yet would come out very different places on the outcomes of particular

policy decisions? >> that is what i'm saying. >> on the notre dame law factuality when up for the vacancy on the seventh second three years ago, the notre dame law faculty as i understand, the letter we got from them here had people unanimously recommend you across a faculty and i assume there's a pretty wide view of policy on the notre dame law faculty? >> there is. >> so people can affirm that you know what the job of a judge is, you have the judicial temperament and modesty and the calling and even though they don't agree with every policy you have comfortable witch you before you put on your robe? >> i hope that's what people think of me because what i've always driven to do, certainly my job as a judge. rule of law, not imposing policy preferences. >> can you tell us what the black robe is about? why do judges in our system wear

robes? >> well, judges in our system wear black robes and started wearing black robes actually because chief justice john marshall started the practice. in the beginning they are wore color robes identifying them with the schools they graduated from. john marshall in his invest cacr wore a black robe. others followed suit and now all judges do it. it shows justice is blind. we all dress the same and shows once we put it on we are standing united, symbolically, speaking in the name of the law. not speaking of our, speaking for ourselves as individuals. >> thank you. you in your questioning from chairman graham this morning talked a little about the process of judicial decision-making astarted with four steps added a fifth and sixth. turns out being a reactive branch is really reactive.

can you explain what it means the article three branch is reactive? >> article three of the constitution says that courts can hear cases or controversies. so a judge can't walk in one day and say, i feel like visiting the question of health care and telling people what i think. we can't even think about the law or how it would ally until litigants bring a live case with live parties and a real, live dispute among us. the material we have to decide that dispute what comes from you. it's the statuteses that you pass. we don't get to come up with the policy and see our wishes become part of the united states code. we react to the litigants who bring cases before us and apply the laws that you make. >> and what are the steps inside those article three courts before it would ever get to a situation where the supreme court hears cases? what is unique about the supreme court? >> so the supreme court obviously sits atop the federal hierarchy of the judiciary, and the supreme court, my court now,

seventh circuit, every time someone loses in the district courts, which are the trial courts, they can appeal. and we take every single appeal that comes. the supreme court works differently. the supreme court takes cases when it needs to, most frequently the reason to resolve a division among the courts of appeal or the state supreme courts. the supreme court gets about 8,000 petitions a year, and they hear about 80 cases a year. so it's a discretionary, what cases to take. >> so it's reactive, it's a reactive branch, and the after a process where there's a statute, it's been challenged. there are active cases and it works its way up to the court. when the justices decline to take a case what are they saying? they're saying, you don't matter? you don't have a right to appeal? what are they saying to the litigants 23in a case they decle to hear? >> simply saying this isn't a

case we'll put on our docket for s because accepts cases resolving a division in the courts or some other question in which, of national importance of which the supreme court needs to step in. >> a lot of discussion in questioning earlier this morning implicitly about standing. explain what standing is so that the american people understand it. >> yes. this dovetails with your question about the judiciary beak being a reactive branch. as i said the constitution gives federal courts the power only to decide actual, live cases and controversies. so not only can we wake up one morning and volunteer our views, because the constitution prohibits us from giving what are called advisory opinions. we can't just dispense advice or give our views on the law. one reason i'm not able to answer some of the questions

asked today. a litigant can't get us to give an advisory opinion or elicit a view until the little gant actually has a real case. you, senator, couldn't walk into court and file a lawsuit and just ask me to give my advice on whether some particular statute was constitutional. i can only decide that question if there is an actual dispute about it. >> you mentioned living constitutionalism a little bit ago. i think chief justice warren had a much broader view of standing than some of the folks that have influenced your thinking and writing. can you walk us through a little bit of history of the court's view of standing over the last few dirk kadecades? >> how broadly when a plaintiff suffered iran j eed an injury? a concrete injury? >> right. >> senator, you came into court and objecting to a particular statute and you didn't like a particular statute, you would have to actually suffer what's

called a concrete injury. so the supreme court a few terms ago in a case called spokeio said that a plaintiff lack as concrete injury in the harm isn't -- let's see to use words the american people might understand, palpable. like, it can't just be a procedural injury or something that didn't actually have real consequence or effect on the litigant. i think that the dispute about standing, you know, a difficult thing and deciding questions of standing, and the spokeio. laid it out deciding when an injury is concrete and courts can hear it or the injury is more abstract and designed to illicit and advisory opinion from the court. >> you said in your opening comments yesterday that it is not the responsibility of the courts to write every wrong in society. i want to ask you a question about it. first, can you remind us what your view is there? why did you say that?

>> so i think probably what i was getting at there, so much happened since i gave the opens statement yesterday, i have to say, courts, because they are reactive, can't reach out to right wrongs that don't come to them in a case and the situation of a case or controversy. and then even if they come to courts, in the situation of a case or controversy, that a court can legitimately decide, we are not free to just resolve it like solomon in the way we think is wisest. so we are only free to address wrongs and decide cases in accordance with democratically elected law. so the policymaking is yours to do, and it is only if you have enacted policies that enable us to right a wrong that we can do so. >> so you still said, though, that you view it as some of your responsibility on the seventh

circuit to write every opinion, every judgment, from the standpoint of the losing party. explain to us why you take that perspective of wanting the losing party to understand the law and the argument? >> so i just write the opinion as i would write the opinion. and then after i write the opinion i read it from the perspective of the losing party. because i want to make sure t t that, like i said earlier, it's a check on me to make sure that if i try to put my emotions or my preferences on the other side that i can see that it's been a balance strictly driven by legal analysis. i also want to make sure that the language in it is very respectful to the party who will ultimately be disappointed. i don't know, is that responsive? >> yeah, because i -- why i want to ask this is because i'm in my fifth year here, a little over five years and on my fourth year on this committee, and pretty much you're the third supreme court nominee to come before the

committee during that time, and we've had dozens of appellate court nominees and i've been amazed how many times the argument is, american people be really, really scared, the person sitting before us obviously hates people and wants them, wants sick people to die and not have health care coverage. that's sort of an argument routine around here. it's been focused grouped about yuslys is a good way to demonize nominees to the cord and hopefully drive outcomes and elections, i guess. i don't understand it. i think it's terribly destru destructive of the civic health yet i think about it from the standpoint of thoughtful, well-meaning nebraska deaths who hear that, and they know i have a different policy view than they might on getting deportability in health care so people were keep their health insurance across job and change because that's actually what's driving insurance not primarily health status. it's not primarily pre-existing

conditions or socioeconomics. number one driver of uninsurance in american public life we change jobs a lot more frequently than we used to. i have a different policy solution how we would get deportability in health care than a lot of my democratic colleagues but those are pros d policy disputes where people move around around in terms of sponsored health insurance relationships. those contracts are not really the things that a nominee coming before the court is supposed to opine on, because i don't have any idea what your views are on health care but i know it's not really the job of the judge to reflect on those things. i want folks too hear the hearing and end of the process have trust you're not a person who really wishes secretly you could be the queen of all health care and decide all of these issues. so when you write your opinion, seems to me one of the really humble things you're doing is saying, in every case that's come before me on the seventh circuit i want to write this opinion from the standpoint of

the losing party to understand what was the question before the court today? and how did the court rule on that specific narrow thing? because ultimately i think you would believe, given your jurisprudential tradition and given your view of judicial modesty and scalia mentorship, my guess, there are times you rule in cases go home at night and take off your robe and think the outcome is not the outcome you wish were the case but it wasn't your job to ultimately decide all policy in american leitch. it was to decide the specific question before you. and seems to me the humble empathetic way you write those opinions is really important. also should be in the interest of public trust and the american people who might listen to a lot of 9 demagoguery implying secretly you're a policy actor. should be comforting then except for probably justice breyer you've written more i think than anybody hoop currently on the

court. people can actually know your jurisprudential views and how you'll approach cases. when you get on the court. because you've written a ton. there's a reason why the notre dame faculty regardless of their policy positions wrote a letter to this committee universally recommending you. a reason why year after year on the notre dame law faculty you were professor of the year, because students regardless of their policy views thought you were really good at explaining what the job of a judge is and what the purpose of article three in our constitutional system is and as somebody who worries a lot about institutional trust and a lot of attacks we see on the court, a lot of the attempts we see in this language about potentially court packing, if we would go to 11 or 13 or 15 or venezuelan style 47-conceperson court, undermizing, delegitimizing of a court, people can actually understand if and i hope that's some of what this hearing would

try to unpack. i am nearly out of time and i think the chairman is going to take away my slot. i want to ask one final thing. tell us about the scalia/ginsburg friendship and the impact it made on you? >> so justice scalia famously when the vacancy came up i think it was justice white's seat that justice ginsburg filled but when the vacancy came up under the clinton administration, justice scalia recommended her. even though they'd been together on the d.c. circuit, where they got to know each other, and he knew that she had a different jurisprudential approach. a lot has been said in the weeks since justice ginsburg died about that friendship, because i think it speaks so well to both of their characters. that despite the fact they had sufficient great differences, and they could fight with the pen, they, when they were socializing, when they were outside of the opinion writing

world, they had respect and affection for one another. and that's how i tried to live my life. i have friends who disagree vehement withry me about all kinds of things but i think that is dehumanizing if we reduce people to the political or policy differences that we might have with one another. >> thank you. and congrats. being half done. >> for the record, i enjoyed living to you senator, make a lot of sense and explains the system. you don't have to pay a lawyer and i think you glet get it very much. so, senator coons. >> i guess i'm on the down side if you're half way through. if i might just at my opening, mr. chairman, i'll submit to letters for the record, if i might. one from the seiu on behalf of 2 million members of services employs international union and

one on behalf of a national constellation of disability rights groups. >> without objections. >> so, judge barrett, if i might, the calendar behind me maims clear something about the context that we're in. because i think folks watching this at home despite the wonderful efforts that a number of my colleagues made to make this accessible may have difficulty understanding exactly why we're here and why under these circumstances and why we keep bringing up the affordable care act. so let me try and walk that through. these aren't normal times, as you all know. most of us are wearing masks. there are a number of members of this committee and the senate who have been infected by covid as our president has, and that's resulted in the senate being closed this week, and are not being able to proceed. we're in the middle of a pandemic. and we are just three weeks from an election. a presidential election in which

folks are voting in more than 40 states, millions votes already cast. just a week after that election the supreme court's going to hear a case that could take away health care protections for more than half of all americans. so this is not an abstract academic argument. it's one that will have real-rife consequenreal real-life consequences. destroying the affordable care act enacted just more than a decade ago would have a real impact on a majority of all american. it prevents insurance companies from discriminating against the more than 100 million americans with brie existing conditions like diabetes, heart disease. dramatically expanded medicaid. it provides coverage for kids on their parents' insurance up to the age of 26. i should say young adults. and perhaps most importantly since a lot of what we've talked about is the legacy of justice ginsburg, and her lifelong commitment to gender equity, it also prevents insurance companies, the accordable care

act does, from discriminating against women just for being women and it may be hard to imagine now but more than a decade ago before the aca, pregnancy was treated as a pre-existing condition and women were routinely charged more than men just because insurance companies could. so president trump. he said over and over again that he is determined to repeal the affordable care act, determined to overthrow it. and two things all of us are waiting for. one is his detailed health plan. the other is his taxes. i don't expect either one of them in the next three weeks. the president tried to do it here in congress. in fact, i think by one count my colleagues have voted 70 times to overturn the aca. and many in this chamber, members of this committee, members like senator cornyn and lee and others have filed amikous briefs before the supreme court asking for the law to be struck down. on the eve of the election i

believe president trump is making a last-gasp attempt to get the supreme court to do it for him. he can't do it through the democratic process or administratively. he's trying with one more challenge. you know, judge, upheld eight years ago in a 5-4 decision chief justice roberts wrote a critical decisive piece of the majority opinion, but justice scalia, your mentor, you colored, broad philosophy you embraced dissented. thought it was unconstitutional and voted to strike down the entirety of the law. you wrote a letter in commentary in 2017 in which you were quite critical of chief justice roberts' decision. i want to ask you about that article. not as it matter of debating abstract academic principles but because i believe the outcome in this kay a week after the election may hang in the balance. you wrote in that article i quote in nifb versus sebelius,

upholding the aca against a constitutional challenge chief roberts pushed 9 affordable care act beyon yond its plausible meaning to save the statute. fighting words as an originalist and contextualist. saying it was constitutional under congress' taxing powers. a ruling essential to upholding the law and protecting health care of majority of americans. if you could, do you think chief justice' ruling upholding the aca was implausible and unsound? >> senator coons, what i said in that article which was a book review of someone else's book was that the statutory interpretation as i said earlier as chief justice roberts' own opinion was the less natural reading of the mandate construing it as a tax ran that a penalty. the statutory interpretation

seemed stretched bey0rd its plausible meaning, but turning on the constitutional question. statute other interpretation was the threshold question. the constitutional question was not something that i ever opined on. and the case next week, or the case that's coming down the pike in a few weeks, california versus texas, i wouldn't say they're fighting words from the article that you read from me, because the california versus texas case involve add very different issue. an issue of server ability. to be fighting words you have to assume my critique of the reasoning reflects a hostility to the act causing me to approach a case involving aca with hostility and looking for a way to take it down to deprive people are their coverage

ounlder tounld under's a/k/a because i didn't like it. i promise you that's not my approach, no hostility to this law or any other and nothing i said with respect to the aca in print, in nigh law view articles bears on the serverability question. it's not indicative how i might approach that question. >> go back to what i perhaps too jokingly referred to as fighting words. both contextuals both from the same general school of constitutional methodology. >> justice scalia, and chief justice roberts. >> i'm not zo zooz. >> so to that point, you chastised him for being a texturalist. you said in this article, and i'm quoting you. it is illegitimate for the

constitution to achieve what a deems a preferable result against the constitution. this has been sharply criticized by your mentor, justice scalia, when criticizing the living constitutionalists. as i read this, you are saying to chief justice roberts, you're no texturalist. you have overreached, you have reached an implausible conclusion and i disagree with you upholding this. that seems to me a plain reading of your own writing. >> senator combs, i want to make very, very clear, i think this came up with senator klobuchar, that i was not attacking or chastising chief justice roberts at all for whom i have the greatest respect. i think this that you're talking about in this book of commentary was maybe a couple paragraphs,

maybe one paragraph at the end because it was a comment on robert barnett's book and a lot of his book dealt with the nfb versus sebelius, for example, so i was responding to that. and the sentence you read about it's illegitimate for a court to twist language in pursuit of a policy goal, i don't think it is the job of courts to pursue policy goals that the text you enact doesn't support. >> so to be clear, you're specifically accusing the chief justice, or you're chastising, might be a better word, the chief justice of distorting the statute and of upholding it when it should have been struck down. >> no, i was not. i said i was not chastising. all i was doing was expressing some -- well, and as i've said several times, it's how the chief justice himself characterized it. it's not the most natural reading of that language, and all i was doing was -- >> if i might, your honor, i

don't think the chief justice would agree with that characterization. he didn't describe his own opinion as not plausible. >> he said less natural. i thought it was implausible -- >> but not unsound. >> so, senator coons, i certainly did not and would not chastise the chief justice or impune his integrity. it is true that chief justice roberts and justice scalia took different approaches to the text in the affordable care act case which is something that is widely acknowledged. >> i'm simply trying to make clear that i think your writing here in 2017 and constitutional commentary, yes, the majority of it is a book review about a book that centrally talks about nifb versus sebelius and methodological questions, but in the end, i think, you are unmistakably clear in saying, i disagree with the chief justice's ruling upholding the affordable care act and i deem it unplausible and unsound. >> senator, as an academic, i

did express a critique. you know, you've quoted the language. you've pulled out those few sentences at the end. i guess i'm a little uncertain what it indicates, because as i've said, i have no hostility to the aca, and if a case came up before me presenting a different question of the aca, i would approach it with no bias or hostility. i also have said at earlier points in this hearing that the exercise of being a commentator, an academic, is much different than the enterprise of judging, and i didn't have to sit in chief justice roberts' seat or justice scalia's seat when nifb versus sebelius was decided. >> but if we follow the timeline laid out by my colleagues, you will sit in former fellow ginsburg's seat, and you will sit as a member of the court deciding a case that is very similar to the previous one in which the central issue before the court, believe it or not,

somehow, will be the constitutionality of the mandate that in some ways has been the lynchpin of being upheld previously. in nifb versus sebelius, that was sort of the key point, was that at the end of the day, there were five justices who, for different reasons, concluded they could uphold it in the case of the chief justice as a legitimate exercise of the taxing power. you wrote, and this is the next sentence, that chief justice roberts, if he had treated the payment, quote, under the mandate, as the statute did, as a penalty, he would have had to invalidate it. so i think you're unmistakably criticizing this decision to uphold the affordable care act in a case that will be before you as a newly seated member of the supreme court if the majority continues with this race towards your confirmation. it is the nerve center of the case. the entire future of the

affordable care act, i think, hinges on this question of whether or not you share a view with the four who were in the minority at the time that this is something that cannot be upheld under any plausible reading of the statute. let me move on, if i might, judge barrett. you're not the only person who has criticized chief justice roberts for his decision to uphold the aca. president trump criticized him for it sharply and repeatedly. soon after the nifb decision first came out in 2012, he tweeted that justice roberts turned on his principles with irrational reasoning in order to get loving press. and then later, congratulations to john roberts for making americans hate the supreme court because of his b.s. a few years later while running for president, then-candidate trump said on twitter, and i believe my colleague put this up

earlier, if i win the presidency, my judicial appointments will do the right thing unlike bush's appointee john roberts on obamacare. and two months ago, vice president pence described chief roberts as a disappointment to conservatives because of the obamacare decision. in upholding the aca, the chief justice was the one justice appointed by a republican president who went against the political wishes of the party who appointed him. why did you choose to single him out for criticism in that constitutional commentary article? >> well, senator coons, i was writing about the majority opinion, and chief justice roberts was the author of the opinion, so i was simply discussing what the five justice majority adopted as its reasoning. and i'd like to emphasize again that i was not attacking chief justice roberts or impuning his character or anything of that

sort. it was an academic critique. and i want to emphasize, just given this line of questions that you're asking, that i'm standing before the committee today saying that i have the integrity to act consistently with my oath and apply the law as the law, to approach the aca and every other statute without bias, and i have not made any commitments or deals or anything like that. i'm not here on a mission to destroy the affordable care act. i'm just here to apply the law and adhere to the rule of law. >> look, i think it is important that folks watching understand that i believe your views are sincere and ernestly held. i'm not trying to suggest there was some kind of secret deal between you and president trump. when you told me that when we spoke a week ago, i've had no conversations about these cases with the president or his legal team. i believe you. i think you are a person who ernestly means that. and i do think it's important

that you keep repeating that. but we cannot ignore the larger context that sits outside your nomination and this rushed process. i'm sure you have no ill will toward the chief justice and meant no disrespect to him as an individual. we've talked repeatedly about the friendship between justice scalia and justice ginsburg. i was long inspired by the friendship between senators biden and senator mccain and they fought hammers and dogs, tooth and nail, disagreed on policy day in and day out, but then still could spend time together with each other's families and respect each other afterwards. to the point my colleague in nebraska made about civics versus politics, it is important for us to sustain these institutions that hold us together. >> and you and senator flake, i think, are another good example of that. >> indeed. we came from notre dame law school to talk about working

together across significant differences. but the broader context that senator whitehouse went through in detail was as you are expressing opinions in an academic journal. there is literally an army of lobbyists and lawyers and people, donors and activists who are funneling new judges into our courts, and i have sat here for four years and watched a whole procession of judges where, without going on about this too much, a dozen have been deemed unqualified to serve. this is not a comment on you. but the speed and the process and the disrespect for some of the critical traditions of this body in terms of the blue slip and who gets nominated and why has made it harder and harder to see the independence of the judicial branch. and in this piece that you wrote in 2017, you made, i think, your position with regards to the

chief justice and his opinion clear. let me, if i could rk, put up another poster that may make this a little sharper in that the political branch is not the judicial branch. the supreme court is going to hear arguments, as i said, in the case a week after the election. and most americans are probably even surprised to hear about it. when i talked to constituent kerry who has a preexisting condition, she was surprised this was even in front of the court. she said, i thought that was settled. kerry owns a small business, she has a daughter she's raising, and before the aca, she had to spend $800 a month for insurance that she described as junk. it left her afraid of even going to the doctor's office or needing drugs. because of the aca, she's been able to get better quality insurance that she can afford, and she's got both type 2 diabetes and high blood pressure. but the aca guarantees she