states werehow my people are voting right now? i don't know. sen. klobuchar: more than 40 states. some thing like 9 million votes have been cast. do you think it is faithful to our democratic principle to fill a supreme court vacancy this close to an election when people are still voting? senatorrrett: klobuchar, i think that's a question for the political branches. sen. coons: these are not normal times, as you know. there are members of this committee and senate who have been infected by covid as the president has an that's resulted in the senate being close this week. we are 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 of votes have already been cast, and just a week after that election, the supreme court is going to hear a case that could take away health care protections for more than half of all americans. this is not an abstract, academic argument, this is one that will have real-life consequences. destroying the essential protections of the affordable care act which was enacted just more than a decade ago would majorityal impact on a of all americans. it prevents insurance companies from discriminating against the more than 100 million americans with pre-existing conditions like diabetes or heart disease. it dramatically expanded medicaid and it provides coverage to kids on their parents insurance up to the age of 26. i should say young adults. perhaps more important like, since a lot of what we have been talking about is the legacy of justice ginsburg and the lifelong commitment to gender equity, it prevents insurance

company -- companies from discriminating against women just for being women. 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. said over andp over again he is determined to repeal the affordable care act, he's determined to overthrow it. there are two things we are waiting for -- one is his detailed health care plan and the other is his taxes. i don't expect either in the next three weeks. the president tried to do it in congress. by one count, my colleagues have voted 70 times to try to overturn the aca and many members of this committee, members like senators cornyn, lee, and others have filed briefs before the supreme court asking for the law to be struck down.

now, 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 cannot do it through the democratic process, he cannot do it administratively, he's going to try to do it with one more challenge. as you well know, it was upheld eight years ago in a five to four decision where justice roberts wrote a critical piece of the opinion. justice scalia, whose broad philosophy you embrace, dissented. he thought it was unconstitutional and voted to strike down the entirety of the law. in wrote an article "constitutional commentary" in 2017 which you are quite critical of chief justice roberts' decision. i want to ask you, not as a matter of debating abstract academic principles, but because i believe the outcome in this case, a week after the election may hang in the balance. he wrote in the article, in a

case that upheld the aca against the constitutional challenge, chief justice roberts push the affordable care act beyond its plausible meaning to save the statute. i think those are fighting words as an originalist and textual list. you were referring to chief ruling thatrts' the aca is constitutional under congresses taxing powers, protecting the law and health care of a majority of americans. do you think the chief justice's ruling was implausible and unsound? senator kunz, what i said in that article -- s, what i said was the statutory interpretation, it was the less natural rating of the mandate concerning it as a task rather than a penalty, the statutory interpretation seemed

stretched yonder its plausible meaning. sibelius turned on a constitutional question, the statutory interpretation was the threshold question in the constitutional question was not something i ever opined on. the case that is coming down the pike in a few weeks, california versus texas, i would not say they are fighting words from the article you read. texas involvesus a very different issue, this issue of severability. for those to be fighting words, i think you would have to assume my critique of the reasoning reflects a hostility to the act that would cause me to approach a case involving the aca with hostility and looking for a way to take it down, to to pry people of their coverage under

the aca because i did not like it. i can promise you that is not my view, that's not my approach to the law. i have no hostility to the aca or any other law and i will faithfully apply the law and nothing i said with respect to the aca in my law review articles bears on the severability question. it is not indicative of how i might approach that question. sen. coons: let me go back to what i jokingly referred to as fighting words. you are both textual lists, both from the same school -- sure barrett: i'm not justice roberts has identified himself as a textual list. sen. coons: in this article three years ago, you chastised justice roberts for not being a textual list. you say he has not proven himself to be a textual is and has been willing to depart from essentially clear text. i'm quoting you -- it is

illegitimate for the court to distort the constitution or a statute to achieve what it deems a preferable result. this was the sort of outcomes-oriented judicial crafting that has been sharply criticized by your mentor when criticizing the living constitutionalist and as i read this, you are saying to chief justice roberts, you are no textual list, you have overreached, you have delivered an implausible conclusion and frankly, i disagree with your upholding the constitutionality of the statute. that seems to me, as a textual list, a plain reading of your own writing. judge barrett: i want to make very clear -- i think this came up with senator klobuchar, i was not attacking or chastising chief justice roberts at all, for whom i have the greatest respect. i think the passages you are talking about in this book was

maybe a couple of paragraphs or maybe one paragraph at the end because it was a comment on the book and a lot of his book l with nfib versus of alias as an example. so i was responding to that. the sentence that you read about its illegitimate for a court to twist language in pursuit of a policy goal, that is what i think. that is what i was telling senator sasse. i don't think it's the job of courts to pursue policy goals that the text you an act does not support. are specifically accusing the chief justice or chastising the chief justice of distorting the statute and of upholding it when it should have been struck down? i was notett: no, chastising. all i was doing was -- and as i have said several times, it's how the chief justice himself characterizes it. it's not the most natural reading of that language. think that i don't

chief justice would agree with that characterization. he did not describe his own opinion as not plausible. judge barrett: he said less natural. sen. coons: but not unsound. judge barrett: i would not and did not criticize or chastise the chief justice or impugn his integrity. it's true that chief justice roberts and justice scalia took text and tests to the that is widely acknowledged. in. coons: your writing here 2017, yes, the majority of it is a book review about a book that talks about nfib versus sibelius, but near the end, you are, i think unmistakably clear in saying i disagree with the chief justice is ruling -- chief justice's ruling and i deem it on plausible and unsound. as an academic, i

youexpress a critique and have quoted the language and pulled out those few sentences at the end. i guess i'm a little uncertain what it indicates because as i have said, i have no hostility to the aca and if the case came up before me presenting a different question, i would approach it with no bias or hostility. i have also said at earlier points in this hearing that the exercise of being a commentator, and academic is much different than the enterprise of judging. i did not have to sit in chief seat when its' was decided. we. coons: but we will if follow the timeline according to my colleagues, you will sit in former justice ginsburg's seat and you will sit as a member of the court deciding a case 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 is in some ways been the linchpin of it being upheld previously. point,s the sort of key at the end of the day, there were five justices who, for different reasons is, concluded they could uphold it in a case of the chief justice come as a legitimate exercise of the taxing power. you wrote chief justice roberts, if he had treated the payment owed under the mandate as the statute did, as a penalty, he would have had to invalidate it. are unmistakably criticizing this decision to uphold the affordable care act in a case that will be before you as a newly seeded member of the supreme court if the majority continues with this race toward your confirmation. it is the nerve center of the case.

it's the entire future of the hingesble care act that on this question of whether or not you share a view with the four who are 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 are not the only person who criticized chief justice roberts for his criticism to uphold the aca. president trump criticized him for it sharply and repeatedly. soon after the nfib decision came out in 2012, he tweeted that justice roberts turned on his principles with irrational reasoning in order to get loving press. then later, congratulations to john roberts for making americans hate the supreme court because of his bs. a few years later, while running for president, then candidate trump set on twitter, and i believe my colleague put this up earlier -- if i win the

presidency, my judicial appointments will do the right appointee,ke bush's john roberts, on obamacare. as recently as just two months ago, vice president pentz described chief justice 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 that appointed him. choose to single him out for criticism in that constitutional commentary article? judge barrett: i was writing about the majority opinion and chief justice roberts was the author of the opinion, so i was the fivescussing what justice majority adopted as its reasoning and i would like to emphasize again that i was not attacking chief justice roberts or impugning his character or

anything of that sort. andas an academic critique i want to emphasize, just given this line of questions you're asking that i'm standing before the committee today saying i have the integrity to act consistently with my oath and apply the law to approach the aca and every other statute without bias and have not made any commitments or deals or anything like that. i am 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. sen. coons: i do get important folks watching understand that i believe your views are sincere and earnestly held and i'm not trying to suggest there was some secret deal between you and president trump. you told me that when we spoke a week ago. i've had no conversation about these cases with the president and legal team, i believe you. i think you are a person who earnestly means that.

and i do think it is important that you keep repeating that, but we cannot ignore the larger context that sits outside your nomination and this rushed process. have no ill will toward the chief justice and met no respect to him as an individual. we 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 tongue, tooth and nail, disagreed with each other on foreign policy day in and day out, but then could still also spend time together with each other's families and respect each other afterward. and to the point my colleague has made about civics versus politics. it's important to sustain these institutes that hold us together. judge barrett: you and senator flake. sen. coons: we came to notre dame law school and talked about

working together across significant differences. that senatorontext whitehouse went through in detail was you are expressing details in an academic journal. -- an army ofy of lobbyists, donors, and activist who are finally 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 the speed in the process and the disrespect for the critical traditions of this body in terms of who is nominated and why has made it harder to see the independence of the judicial branch. 2017,s piece you wrote in you made your position with

regards to the chief justice and his opinion clear. that may make this sharper in a way that the political branches on the judicial branch. the supreme court is going to hear arguments in this case a week after the election. most americans are probably surprised to hear about it. when i talked who has a pre-existing condition, she was surprised this was in front of the cord. she thought it was settled. daughter she's raising. before the aca, she had to spend $800 for insurance that she described as junk. because of the aca, she's been able to get better quality insurance she can afford. she has type two diabetes and high blood pressure.

the aca guarantee she cannot be denied insurance because of her gender or these pre-existing conditions. she expressed to me astonishment . many of us are interested because we care about the constitution and the ways it impacts a majority of all americans. her, how isain to it the affordable care act, settled eight years ago, is back in front of the supreme court. timearrett: i spent some talking about how a case comes up, litigants chose to challenge the login. it went to the district court and now the supreme court has granted and is answering the question. as to the broader question, a political one, why are people fighting the affordable care

act, you have to ask the litigants. i don't know why. no. coons: there are advisory opinions, as you said, you have to have standing to react. there is a network of groups that fund and developed and present test cases over and over. this is an issue that will be before the court a week after the election that is not aboutguishable, they are the constitutionality of the mandate, whether it is a legitimate exercise of the taxing power. you don't get to the question if you have not determined the question of constitutionality. ms. barrett: the question, even provision is a penalty, it does not affect the act at all if that provision can be severed out. the rest of the act would stand.

is one that severability of the most important issues in the case. i don't think the question of a tax or a penalty, it is interpreting a different position. it was not zeroed out. it had money attached to it. could, the if i filing of the department of justice, the justice department is supposed to defend the constitutionality of federal laws. hastrump justice apartment sided with advocates that are trying to strike the law down when they could not accomplish that here. i would argue they are denying the will of the voters that in 2018 in deciding control of the house want this to stay. the administration is arguing this toothless mandate which

imposes no payment on anyone, is unconstitutional and they are arguing the entire act must be struck down. the doj is embarrassed by this brief. they talk about it rarely. it is" over my shoulder that it thatgo and so the parts prevent insurance companies from discriminating against people with pre-existing conditions, all of it must fall as a result. it seems to me americans that are watching deserve to understand this is in front of the court and the posture the administration is taking, the ways it follows the contours of , i know you won't talk about the pending case, what you said in 2017 is highly relevant the aca was 5-4.

justice ginsburg was in the majority and justice scalia are the minority. if you were to replace justice ginsburg with someone that followed justice scalia's analysis, on the linchpin question of constitutionality, one could expect it would be overturned. ms. barrett: no, because if there were a direct challenge, there would be precedent and the law, there is a body of doctrine that binds judges. so i don't think one could assume in a separate point in time even justice scalia would decide the case the same way when there was precedent on the books. sen. coons: i agree and look forward to discussing that in detail tomorrow. i have six minutes. your views of precedent and the way they made a verge.

i think they are important for us to spend time on. point, forp this president trump, for republican politicians, the argument about a tax and whether the mandate is a tax is the gateway to knocking down the entire affordable care act and the line of attack taken by the department of justice. you have said it is not plausible to interpret the mandate as a tax. you did not think it was a tax when it was building -- raising billions in revenue. the thing that might distinguish it from nfib's reliance interest in precedent. when i have more time tomorrow, we will go through that. i wanted to connect some dots. trump has vowed to get rid of the aca, campaigned on it, criticize the chief justice and said his nominees would do the right thing. his administration is in court right now that it should be

invalidated. and a person you've criticized, chief roberts, a person whose opinion and decision you have wayscized, means in many you have signaled, you were added to the supreme court shortlist after you wrote that article. today my colleagues who have promised to repeal the aca are rushing through your nomination so you can be seated in time to hear the case. it concerns me greatly. let me ask one last line of questioning in the five minutes i've left. there's another subject on which trump has been very clear about what he hoped for from a supreme court nominee. days after justice ginsburg passed, he was asked why there was a rush to fill her seat. he responded, we need to nine

justices, you need that. the millions of ballots they are sending, it is a scam, a hoax, they need nine justices. he told reporters again, he doubled down, i think this will end up in the supreme court. it's important. we must have nine justices. our president has been asked whether he will commit to a peaceful transition if he loses. he has been asked repeatedly. instead of responding in the way we would expect with a clear and simple yes, he tried to so confusion and distrust. i'm am concerned what president trump wants could not be clear, he's trying to rush this nomination ahead so you might cast a decision of vote in his favor in the event of a disputed election. he's doing his best to cast

doubt on the legitimacy of an election in which millions of votes have been cast, most of them by mail. i was encouraged to hear from you specifically, you have not had any conversation about this topic. that is not what i'm suggesting. you are repeated, familiar with the recusal statute. issue is thatre any judge or justice should recuse themselves from a case in which there impartiality might be questioned. given what president trump said, this the rushed context of confirmation, will you commit to recusing yourself from any dispute in the presidential election? ms. barrett: thank you for giving the opportunity to clarify. i want to be clear for the

no matter what anyone not or expect, i have signaled or even written, a couple of opinions have been around the edges of election law. i have not even written anything anybody could say this is how she might resolve an election dispute. and help allder members of the committee have more confidence in my integrity then to think i would allow myself to be used as a pawn to decide the selection for the american people. that was on the question of bias. just about the appearance of bias. that is a statute that does require a justice or judge to recuse when there's an appearance of bias. what i will commit to every member and the rest of the senate and american people's i will consider all factors relevant to that question.

relevant to the question that requires recusal when there is an appearance of bias. there is case law under the statute and as i referenced in describing the process, justice ginsburg said it is done with consultation of the other justices. confirmedif i were arises, iispute would seriously undertake that process and consider every relevant factor. i cannot commit right now for the reasons we talked about, but i assure you of my integrity that i would take that question seriously. thank you. on the question of consultation, the former chief justice rehnquist, because this question came up, wrote a letter to members of this committee, there is no formal seizure for court review of a decision. individual cases into something justice ginsburg did say, there was consultation.

what matters is removing any , ensuringconflict there is confidence in our election, in the supreme court and in its role, that is critical. we were assured yesterday you would not be attacked on the basis of your faith. that did not last 24 hours. i am not surprised. from theeard tax democrats on nominees on the basis of their faith, including you. we talked about this yesterday. the second senator to speak questioned and criticized you for speaking to a christian group that has a program for christian law students where you gave a lecture once or twice on constitutional interpretation. let me ask about that. you have talked about your