heading down to florida. brian: lunch is usually around 11:30, that's when we'll see a lot of sandra smith and bret baier, and we're going to see this many now as we look at day one -- and it's actually day two, with bill hemmer. sandra: bill is here, bret, martha, shannon, the whole gang. thanks, guys. today senators on the judiciary committee had been are getting to question the president's supreme court nominee one day after democrats use their opening statements to warn that the affordable care act was on the line. good tuesday morning, everyone, i'm sandra smith, and there he is -- bill: nice to see you again, day two as we roll right through. we are told to get ready for a long day today. i'm bill hemmer, good morning. judge barrett arriving on the hill a few moments ago, or president trump praising her down in florida saying she's a brilliant scholar who will defend the country's laws. on day one, judge barrett talked about her mentor, the late

justice antonin scalia, in prepared remarks. >> it was the content of justice scalia's reasoning that shaped me. his judicial philosophy was straightforward. a judge must apply the law as it is written, not as she wishes it were. >> if we can get this wonderfully-qualified, conservative woman on the court, we'll be making a statement to all young conservative women there's a place at the table for you. >> your health care is on the lewin. a justice who -- on the line. a justice who has been critical of upholding the affordable care act. >> doesn't matter who judge barrett is, doesn't matter what she's done, doesn't matter her record, doesn't matter. sandra: here we go on to day two. we've got today's hearing covered, bret baier, as mentioned, chris wallace, that maccallum, but we begin with chief legal correspondent shannon bream. shannon, good morning. here we go, day two. they want it in the books.

30 minutes of questioning from each of the senators today, that's about 31 hours, take us -- 11 hours, take us well into the evening. what are the can'tations? >> well -- expectations? >> well, yesterday you saw a lot of large posters, pictures, personal remembrances and conversations about people who may be impacted by the issue of health care if judge barrett becomes justice barrett. there's a lot there that these folks know is not painting the full picture. we had some discussion of this yesterday. she has not ruled on an affordable care act cause. we don't know how she would rule on this case before the court november 10th, but we to know it's a very, very specific, narrow issue, and a lot of folks believe regardless how shld vote, there won't be enough other votes to sway or get rid of the affordable care act in its entire few. almost nobody thinks that's actually going to happen. we don't see those mosters, they -- posters, they may arrive when the senators do.

i think it was almost 70 times health care was mentioned yesterday in the opening statements even though it really is not part of the background or the examination of what we've seen in judge barrett's record so far. we heard talk of coronavirus, all kinds of things that probably are not directly relatable to this particular nominee. they're going to push her on past writings, past records, past speeches. there was some controversy over a pro-life ad that appeared in a newspaper that she signed her name to and why that wasn't disclosed earlier. her team putting together a submission of additional materials to the senate judiciary committee here, flushing it out. so she's going to get asked about groups she's associated with, speeches that she's given, all kinds of things. she's only billion on the federal bench for a short time, so so there's not that depth for these senators. but knowing that they -- unless something drastically unexpected happens, democrats do not have the votes or any procedural mechanism to stop this nominee.

it'll continue to move along, and i've got to tell you as i mentioned yesterday because there's no public component to this, there are no outside spectators, it moved along much more quickly and smoothly yesterday than it did during the hearings for justice kavanaugh. so this pace might be a little bit more quick today than what we've seen in past confirmation hearings, but she'll arrive shortly and will get down to business which is that head to head questioning. sandra: all right, we're going to bring in the team now -- bill: excellent point now. the only presence outside the lawmakers and and staff. chris wallace, anchor of "fox news sunday." here we go, guys, i guess, bret, one of the things i'm looking forward to is trying to hear how republicans who are up for re-election in three weeks, in fact, from today, what kind of a line of questioning they go here. senator feinstein on the list will go second. you remember three years ago when she talked about judge

barrett's faith and mentioned that now-infamous quote, the dogma live ares loudly within you. i don't know if she will go there, my expectation is that she she will hold her fire on that comment from three years ago. >> i will give good odds, bill, that she will not use the word dogma, nor will any other senator on the democratic side. i don't think the faith issue is going to come up prominently at all because we are so close to this election, 21 days. three weeks from today is this election. and remember, eight senators up for reelection on this committee, one vice presidential nominee. but more importantly, as you think about the health care issue, as shannon mentioned, it's not really a huge issue with this justice-to-be. it is somewhat possible, i mean, it's possible that the law could be voted down, but it's not likely at all, and nobody in the

field really believes it. but it is of enough to hang democrats' hat on that peg and say this is an issue because it's one of the top issues for voters around the country. and democrats see an opportunity here in this hearing to play this out not only for this justice where they don't have the votes, justice-to-be likely, but also for voters in 201 days. bill: most of these senators appearing in person, kamala harris opting to go virtual. we'll expect the same setup, but we'll anticipate that. sandra: and, that martha, when u looked at the focus line of attacks from the democrats, we've been digging through the transcripts of the hours of day one's hearings. obamacare was used 140 times, aca said 56, obamacare, 17. what does that tell you about what we may hear from democrats

as they begin their questioning in that hearing room this morning? >> i think when this whole process began, sandra, democrats felt like they had a lot of arrows in their quiver. they went after the people of praise part of her background which is a christian group that she has been part of, she's on the board of the schools of those, and it peoples like -- feels like they have decided the strongest arrow e is to sort of rock people's belief that the aca, or obamacare, could be overturned by this court. now, i mean, it's not to say that it can't be, it could be, but we -- as we discussed yesterday, it's such a flower row angle -- narrow angle, such a narrow sliver of the law that's under discussion right now that to sort of paint it with such a broad brush and to put up all of these posters and discuss all of these people's different situations, you know, it's clearly an emotional appeal to make people nervous as they go toward election day about whether or not this would be able to hold up under a new

supreme court. and one of the things that i'm going to be watching for that i think may come up is that she has not served on the bench for that long. she was nominated and confirmed in 2017 to the seventh circuit, and she does not have a long experience. she has a much thinner record than many of the justices who sit on the bench now. and i think that that is sort of an appropriate question to raise about her experience and whether or not she's ready for this job. i think we heard a lot of reasons yesterday why many people feel that she is, and i think you're going to hear that from remoneys as well. abortion -- republicans. abortion will be another issue that i'm going to be listening for closely in whatever veiled way it comes up and how she responds, also very important. sandra: lindsey graham, the chairman, taking a seat. dianne feinstein, the ranking member, just entered the room. we both noted that lindsey graham dropped the gavel before, and there she is, the nominee herself, walking into the room. he dropped the gavel, and schoen she walked in and took her seat.

bill: noted that. judge barrett is 48 now, highly acclaimed as a judge, seventh circuit out of chicago. got about a minute before the gavel drops again today. want to get to chris wallace what do you have your eye on? >> well, it's interesting. i think the push on the affordable care act is less about trying to derail this nomination, because i think democrats basically realize they're going to be unable to do so. it's trying to make republicans pay at the ballot box. remember, the affordable care act, protecting people with pre-existing conditions, was the best issue for democrats in the 2018 midterm election. we should also point out it isn't crazy to bring it up, a texas judge struck down the entire law and, in fact, the trump administration, the justice department is saying they want the entire law to be struck down. but i think this is more about politics and the 2020 election than it is about the confirmation of amy coney

barrett. although it'll be interesting to hear how she responds, because you can figure some of these democrats are going to say what about mica, and she's going to lose this, what are you going to do. on the one hand, you're not going to get amy coney barrett say i'm going to rule one way or another on the law, but she will have to express human compassion for these cases.

>> the goal is to get through the first 30-minute period today and come back wednesday and finish up. then we'll go on about our business. so i will try to -- i'll make sure i stay within 30 minutes for sure. if i can shorten it up, i will. let's get to it. you can start the clock. so you can relax a bit here, judge and take your mask off. so yesterday we had a lot of discussion about the affordable healthcare act. what i will try to do very briefly this morning is to demonstrate the difference between politics and judging. all of my colleagues on the other side had very emotional pleas about obamacare, charts

of people with pre-existing conditions. i want to give you my side of the story about obamacare. this is lindsey graham the senator from south carolina talking. this is not a question directed at you. from my point of view, obamacare has been a disaster for the state of south carolina. all of you want to impose obamacare on south carolina. we don't want it. we want something better. we want something different. you know what we want in south carolina? south carolina care, not obamacare. why do we want that? under the affordable care act, three states get 35% of the money, folks. can you name them? i'll help you. california, new york, and massachusetts. they are 22% of the population. senator feinstein is from california, nancy pelosi is from california, chuck schumer, the leader of the democratic senate is from new york.

and massachusetts is elizabeth warren. why do they get 35% of the money when they're only 22% of the population? that's the way they designed the law. the more you spend, the more you get. what does it mean for the people of south carolina? if you had a per-patient formula where you got the same amount from the federal government to the state whether you lived in charleston, columbia, or san francisco or new york city, if you leveled that out it would be almost a billion dollars more for us in south carolina. so to my friends over there, we are going to fight back. we want our money. if you are going to have money allocated for obamacare we aren't going to sit back and quietly let you give 35% of it to three states. what else has happened in south carolina? four rural hospitals have closed because the revenue streams are uncertain. 30% increase in premiums in

south carolina for those on obamacare. i was on obamacare for a few years before i got on tricare. my premiums went up 300%. coverage was almost non-existent. a $6,000 deductible. i want a better deal. and that's a political fight. campaign at home. if it were up to me we would block grant this money, send it back to the states in a more fair allocation and require pre-existing conditions to be covered as part of the block grant. i have an idea. i think south carolina may be able to deal with diabetes better than and different than california. if you want good outcomes in medicine you need innovation. the best way to get innovation is to allow people to try different things to get better outcomes. so the debate on healthcare is consolidating all the power in washington, have some

bureaucrat you'll never meet running this program versus having it centered in the state where you live. under my proposal, south carolina would get almost a billion dollars more. the state of south carolina would be in charge of administering obamacare. they couldn't build football stadiums with the money but have to cover pre-existing conditions and spend it on healthcare. as a patient in south carolina you would have a voice you don't have today. if you didn't like what was happening to you on the healthcare front you could go to local officials and complain. and the people you are complaining to live in your state. they send their family to the same hospitals you go. that's a structural difference. that's got nothing to do with this hearing. it has everything to do with politics. we on this side do not believe obamacare is the best way to provide quality healthcare over time. our friends on the other side this is a place holder for single payer healthcare.

if you don't believe me, just ask them. to that's the fight going into 2020. doesn't make them bad, it just makes them different. if it were up to me bureaucrats wouldn't be administering healthcare from washington people in south carolina would be running healthcare. if it would up to me we would get more money under obamacare than we do today. 35% would not go to three states and sick people would be covered. that's a political debate we're involved in a campaign in south carolina and my fate will be left up to the people of south carolina. so that's what obamacare is all about. now how do you play in here, judge? there is a lawsuit involving the affordable care act before the supreme court and we'll talk about in a bit. the difference between analyzing a lawsuit and having a political argument is fundamentally different and i hope to be able to demonstrate that over the course of the day. i hope that my colleagues on this side of the aisle will not feel shy about telling my

colleagues on the other side of the aisle why we think we have a better idea on healthcare. now, the bottom line here, judge, you said yesterday something that struck me and i want the american people to understand what you meant. you said you are an originalist, is that true? what does that mean in english? >> it means that -- press the button. we all love senator lee but -- in english. >> in english. in english that means that i interpret the constitution as a law, that i interpret its text as text and i under -- the meaning doesn't change over time and it is not up to me to update it or infuse my own policy views into it. >> in other words, you are bound by the people who wrote it at the time they wrote it and keeps you from substituting

your judgment for theirs, correct? >> yes. >> people say you are a female scalia, what would you say? >> i would say that justice scalia was a mentor. as i said when i accepted the president's nomination that his philosophy is mine, too. he was a very eloquent defender of originalism and it was also true of textualism, which is the way that i approach statutes and their interpretation and similarly to what i just said about originalism. textualism the judge approaches is texas it was meaning for the meaning it had at the time and doesn't insert their own meaning into it. if i'm confirmed, you would not be getting justice scalia, you would be getting justice barrett. that's so because originalists don't always agree and neither

do textualist. others disagreed and my partner teaches a class scalia versus thomas. not a mechanical exercise. >> i'll wait until the movie comes out. the bottom line there is a narrative building this in country. justice ginsburg was progressive in personal thought, devout to her faith, she worked for the aclu. she was proudly pro-choice personally but all of us on this side apparently when they voted accepted that she was highly qualified. what i want the american people to know i think it's okay to be religiously conservative. i think it's okay to be personally pro-choice. i think it's okay to live your

life in a traditional catholic fashion. and you still be qualified for the supreme court. so all the young conservative women out there, this hearing to me is about a place for you. i hope when this is all over that you -- there will be a place for you at the table. there will be a spot for you at the supreme court like there was for judge ginsburg. to president trump, i don't know if you're listening or not, but picking judge barrett you have publicly said you find value in all of these characteristics but beyond anything else, you find judge barrett to be highly qualified. i would say you are one of the greatest picks president trump could have made and from the conservative side of the aisle you are one of the most qualified people of your generation. let's talk about brown versus board of education because i know senator blumenthal will. i will talk about that. you said in writings it was a super precedent. what did you mean? >> well in my writings as a

professor i talked about the doctrine of stare decisis and super precedent is not a term that comes from the supreme court and i think maybe in political conversation or newspapers people use it differently. but in my writing i was using a framework that has been articulated by other scholars and in that context super precedent means precedent that is so well established that it will not be overruled. there are six others on the list. >> let's talk about brown and why it would be unthinkable. let's talk about what's the process that would lead to it being overruled? what would have to happen? >> for brown to be overruled you would have to have congress or some state or local government impose segregation again. >> let's start right there. if you want to make yourself famous by the end of the day you can say we want to go back

to segregation and i promise you, you will be on every cable tv channel in america. the point we're trying to make here is the court just can't wake up and saip let's revisit brown. it has to be a case in controversy, is that right? >> yes, that's right. >> before you could review brown somebody out there would have to be dumb enough to say let's go back to segregated schools. >> that's fair to say. >> do you see that happening anytime soon? >> no. >> i don't, either. let's talk about the process in general. the heller case, what's that about? >> that's a case decided by the supreme court which held the second amendment protects an individual right to bear arms. >> okay. now my friends on the left some of them have a problem with heller, they may try to challenge the construct of heller, if a state or local government passed the law in defiance of heller what would

happen or that was challenging the construct >> that challenged the construct of heller if it was a lower court, heller binds. heller -- lower courts always have to follow supreme court precedent. >> if the supreme court wanted to revisit heller what would they do? >> if someone challenged heller below because a state or local government pass had a law contradicting heller the supreme court would have to take that case once it was appealed all the way up. the court would have to decide yes, we want to overrule heller and we have enough votes to grant certain and do so. >> that's the way the process works? >> yes. it would start because there was a law, a lawsuit, appeal, the court granted certain and the court decided the case. >> bill: is that true no matter what the issue is. gun, abortion, healthcare, campaign finance, does that process hold true for everything? >> yes. judges can't just wake up one day and say i have an agenda, i

like guns, i hate guns and walk in and impose their will on the world. you have to wait for cases and controversy to wind their way through the process. >> i hope that's the basic lesson-in-law here. if a state said i don't think you should have over six bullets and somebody believed that violated the second amendment, there would be a lawsuit and the same process would work, right? >> the same process would work. in that case there would be parties would have to sue the state arguing that law was unconstitutional. it would wind its way up and if it got to the supreme court and if the supreme court decided to take it, a whole decision making process begins. you hear arguments from litigants on both sides. they write briefs. you talk to clerks as a judge.

you talk to your colleagues. and you write an opinion. opinions circulate and you get feedback from your colleagues. it is an entire process. not something that a judge or justice would wake up and say we're hearing this case, i know what my vote is going to be. >> let's talk about the two supreme court cases regarding abortion. what are the two leading cases in america regarding abortion? >> most people think of roe v. wade and casey is the case that preserved the central holding. >> what is that rationale? >> the state cannot impose an undue burden on a woman's right to terminate a pregnancy. >> there are states challenging the abortion front and the feetal heartbeat bill. i have one that would disallow

abortion after the fifth month of the pregnancy. we're one of seven nations that allow abortion on demand on the fifth month. because a child is capable of feeling pain in the fifth month doctors tell us to save the child's life you have to have anesthesia if you operate because they can feel pain. if you have to provide anesthesia to save the child east life it must be a terrible death to be dismembered by an abortion. that's a theory to protect the unborn at the fifth month. if that litigation comes before you, will you listen to both sides? >> of course, i'll do that in every case. >> 14 states passed a version of what i described. there is a debate in america still unlike brown versus board of education about the rights of the unborn. that's just one example. so if there is a challenge

coming from a state, if a state passes a law and it goes into court where people say this violates casey, how do you decide that? >> well, it would begin in a district court and trial court. the trial court would make a record. the parties would litigate and devil -- develop the record in the trial court and it would be the same process, someone would have to seek the supreme court. supreme court would have to grant it and at that point it would be the full judicial process, briefs, oral argument, conversations with law clerks in chambers, consultation with colleagues, writing an opinion. really digging down into it. it's not just a vote. you all do that. you have a policy and you cast a vote. the judicial process is different. >> okay. so when it comes to your personal views about this topic, do you own a gun?

>> we do own a gun. >> okay. all right. do you think you could fairly decide a case even though you own a gun? >> yes. >> you're catholic. >> i am. >> we've established that. the tenets of your faith mean a lot to you and you've chosen to raise your family in the catholic faith, is that correct? >> that's true. >> can you set aside whatever catholic beliefs you have regarding any issue before you? >> i can. i have done that in my time on the 7th circuit. if i stay there i'll continue to do that. if i'm confirmed i to the supreme court i will do that still. >> i would dare say there are personal thoughts on the supreme court. no question -- no reason to question yours in my view. the bottom line here is that there is a process. you fill in the blanks whether

it's about guns and heller, abortion rights. let's go to citizens united. to my good friend senator whitehouse. we'll come closer and closer about regulating money. i don't know what's going on out there. there is a lot of money being raised in this campaign. i would like to know where the hell some of it is coming from. that's not your problem. citizens united says what? >> citizens united expands the protection of the first amendment to corporations who engage in political speech. >> if congress wanted to revisit that and somebody challenged it under citizens united that congress went too far, what would you do? how would the process work? >> well, it would be the same process that i've been describing. somebody would have to challenge the law in a case. somebody who wanted to spend the money in a political campaign. it would wind its way up and judges would decide it after briefs and oral argument and

consultation with colleagues and the process of opinion writing. >> same-sex marriage. what is the case that established same-sex marriage as the law of the land. >> if there is a state trying to outlaw marriage would it follow the same process? >> it would. not only would someone have to challenge that statute and somebody -- if they outlawed same-sex marriage there would have to be a case challenging it. for the supreme court to take it up you would have to have lower courts going along and saying we'll flout that ruling. the most likely result would be lower courts bound by that would should a lawsuit like that down and it wouldn't make its way to the supreme court. if it did it would be the same process i described. >> let's turn to senator

hawley's topic. due process as a legal theory. what am i talking about? can you explain it for the country. if you can't we're in trouble. >> both the 14th and 5th amendments protect life or provide that the state cannot take life, liberty or property without due process of law and that sounds like a procedural guarantee but in supreme court precedent it has a substantive component. it says there are some liberties and rights that people possess that the state can't take away or can't take away without a really good reason. the right to use birth control, the right to abortion are examples of rights protected by that. >> these are not found in the document -- >> the supreme court grounded them in the constitution. >> but they aren't written. >> they're not expressed. >> fair to say there is a great debate in the law about how far

this should go and what limits should apply, if any? >> that's fair to say. there is also a lot of debate in supreme court opinions. i'm not aware of anybody to throw it over entirely but certainly a debate how to define these rights and how far it should go. >> let's just say you are in the camp or anybody is in the camp that substantive due process is a legal concept is unbounded and makes the constitution no more certain than the five people interpreting it at any given time in the country, whatever rights they think you have you get. whatever rights they want the take away from you they can. it's a pretty nebulous legal concept. that is my view of it. i'm not imposing my views on yours. but then there is a thing called precedent. let's say you didn't like a case decided under substantive due process. you thought the whole concept was constitutionally in error. how does precedent play?

>> precedent is the principle that cases that have been decided by the court before this one lands on the docket are presumptively controlling. precedent comes from a concept called stare decisis, a shorthand for longer latin phrase that means stand by the thing decided and don't disturb the calm. precedent is a principle you won't overrule something without good reason or boil up the law without justification for doing so. >> so you could say the underlying analysis that led to any case, just case x, i reject that analysis but i will now apply precedent to whether or not it should be reversed, is that what you're telling us? >> that is. precedent -- >> what other factors would a judge look at in terms of overruling a precedent. >> of course the inquiry begins because there has been some argument that the precedent was wrong. that's not enough to justify an

overruling. you also consider -- >> structural li -- constitutionally wrongly decided but it doesn't end the debate. >> that's right. reliance interest, whether the law or the facts. >> stop, reliance interest by who? >> reliance interest by those who have relied on the precedent. >> the people of the united states. >> people of the united states who ordered their affairs around it. >> the heller case people have relied on individual rights, correct? >> presumably so. >> abortion would be the right to have an abortion. that would be a reliance factor, right? >> the court in casey spent a lot of time describing the reliance of people on the right to abortion. >> what i want the public to know. if you overrule a precedent of the court even if you think it's wrongly decided there are a list of things you have to look at before you actually overrule the case. is that a fair way of saying it? >> yes.

>> would you apply those factors if you found yourself in a position to consider overruling a precedent. >> absolutely. >> have they been overruled before? >> yes. brown versus the board of education to get rid of the separate but equal doctrine. >> recusal. my colleagues are asking you to recuse yourself from litigation around the affordable care act. what is the precedent regarding the affordable care act, if any? >> the precedent that -- >> is there precedent on this issue? >> there is not precedent on the issue coming up before the court. it turns on a doctrine called serveability. >> the issue before the court

is seb >> the real issue now is does it stand and can it be serveable? >> the issue now. now that congress has zeroed it out can it be called a tax or now a penalty. the second issue is if it is a penalty, can it be cut out from the statute so that the rest of the statute, including protection for pre-existing conditions, stands. >> a lot smarter people than me suggest that serverability would be a hard challenge for those opposing the law. time will tell. do you feel you should recuse yourself from that case because you are being nominated by president trump? >> well, senator, recusal itself is a legal issue. there is a statute 28 that governs when judges and justices have to recuse. there is precedent under that rule. justice ginsburg in explaining the way recusal works said it is also up to the individual

justice but always involves consultation with the colleagues of the other eight justices. that's not a question i could answer in the abstract. >> if you're appointed by obama that's no reason to recuse yourself in a case involving obama policy, is that correct? >> that would be a decision for each justice to make. >> but if a justice had th a pa policy issue, they helped draft it, that would be a consideration, is that correct? >> ay. so when it comes to recusing yourself, you will do what the supreme court requires of every justice. >> i will. >> okay. thank you very much. how does it feel to be nominated for the supreme court of the united states? >> senator, i've tried to be on a media blackout for the sake of my mental health but you can't keep yourself walled off from everything and i'm aware of a lot of the character ki tours that are floating aruined. what i would like to say in

response to that question is look, i've made distinct choices. i have decided to pursue a career and have a large family, i have a multi-racial family, our faith is important to us. all of those things are true but they are my choices and in my personal interactions with people i have a life brimming with people who have made different choices and i have never tried in my personal life to impose my choices on them and the same is true professionally. i apply the law and senator, i think i should just say why i'm sitting in this seat with response to that question, too. why i have agreed to be here. i don't think it's any secret to any of you or to the american people this is a really difficult some might say excruciating process. jesse and i had a very brief amount of time to make a decision with momentous consequences with our family. our lives would be combed over for negative details and our faith and family would be

attacked and so we had to decide whether those difficulties would be worth it because what sane person would go through that if there wasn't a benefit on the other side. and the benefit i think is that i'm committed to the rule of law and the role of the supreme court and dispensing equal justice for all. i'm not the only person who could do this job but i was asked and it would be difficult for anyone. so why should i say someone else should do the difficulty if the difficulty is the only reason to say no, i should serve my country and my family is all in on that because they share my belief in the rule of law. >> thank you. i think a lot of people would say you have to be sort of insane to run for the senate in this world but good news for you, we've all chosen the kind of crazy stuff to do. i end with th. i'm glad you said yes. i'm glad president trump chose you and really before the people of the united states is a very basic question. is it okay to be religiously

conservative? is it okay to be pro-life in your personal life? it clearly is okay to be progressive and be pro-choice and seek a seat on the supreme court. i think resoundingly yes. here is why your nomination is so important to me. in my world be a young conservative woman is not an easy path to take. we have two women on this committee who can talk about it better than i. i want to thank president trump or choosing you and do everything i can to make sure you have a seat at the table. the table is the supreme court. if anybody in the country in my view deserves to have a seat at the table based on the way they've lived their life and their capabilities within the law it is you, judge. god bless you. thank you. >> thank you, chairman graham. >> mr. chairman, judge, it is wonderful to see you here. also with the family that i

have been observing. they sit still, quiet, you've done a very good job. >> i have eyes in the back of my head. >> i was wondering if you might introduce us to them. >> sure. so i have my husband jesse, my son, j.t. my daughter emma, my daughter july y*et, my daughter tess and liam and six siblings with me today. it's my sister vivian, my sister eileen, my brother michael, my sister meghan, and my sister amanda and is carey -- and my sister carey is sitting right over there. >> you don't have a magic formula for how you do it and handle all the children and your job and your work and your thought process, which is obviously excellent, do you? >> it's improv.

>> let me begin with a question the chairman touched on. it is of great importance, i think. it goes to a woman's fundamental right to make the most personal decisions about their own body. and as a college student in the 1950s, i saw what happened to young women who became pregnant at a time when abortion was not legal in this country. i went to stanford, i saw the trips to mexico, i saw young women try to hurt themselves and it was really deeply, deeply concerning. during her confirmation hearing before this committee in 1993, ruth bader ginsburg was asked several questions about her views on whether the constitution protects a woman's right to abortion.

she unequivocally confirmed her view the constitution protects a woman's right to abortion and she explained it like this and i quote. the decision whether or not to bear a child is central to a woman's life. to her well-being and dignity. it is a decision she must make for herself. when government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choice, end quote. at one point our former colleague orrin hatch, then the ranking member of this committee, commended her for her being very forthright in talking about that, end quote. i hope -- and you have been thus far. be equally forthright with your answers. in planned parenthood of southeastern pennsylvania versus casey, justice scalia, as was said earlier, joined the

dissent which took the position -- and i quote -- we believe that roe was wrongly decided and that it can and should be overruled, consistent with our traditional approach to stare decisis and constitutional cases. do you agree with justice scalia's view that roe was wrongly decided? >> senator, i want to be forthright and answer every question as far as i can. i think on that question, you know, i'll invoke justice kagan's description in her confirmation hearing she said she wouldn't grade precedent or give it a thumbs up or thumbs down. in an area where precedent continues to be pressed and litigated as is true of casey it would be particularly -- it would be wrong and a violation of the cannons for me to do that as sitting judge. so if i express a view on the

precedent one way another whether i say or love it or hate it, it signals to litigants i might tilt one way or another in a pending case. >> so on something that is really a major cause with major effect on overhalf of the population of this country who are women, after all, it's distressing not to get a straight answer. so let me try again. do you agree with justice scalia's view that roe was wrongly decided >> senator, i completely understand why you are asking the question. but again, i can't pre-commit or say yes i'm going in with some agenda because i'm not. i don't have any agenda. i have no agenda to try to overrule casey, i have an agenda to stick to the rule of law and decide cases as they come.

>> well, what i'm -- as a person, i don't know if you'll answer this one, either. do you agree with justice scalia's view that roe can and should be overturned by the supreme court? >> well, i think my answer is the same because, you know, that's a case that is litigated. it could -- its contours could come up again. they came up last term before the court. so i think what the casey standard is and that's just a contentious issue which is one reason why it would be comforting for you to have an answer but i can't express views on cases or pre-commit to approaching a case any particular way. >> well, that makes it difficult for me and i think for other women also on this committee because this is a very important case and it affects a lot of people,

millions and millions of women. and you could be a very important vote. and i had hoped you would say as a person you've got a lovely family, you understand all the implications of family life. you should be very proud of that. i'm proud of you for that. but my position is a little different. you are going on the biggest court of this land with a problem out there that all women see one way or another in their life. and not all but certainly married women do and others, too. so the question comes what happens? and will this justice support a law that has substantial precedent now? would you commit yourself on whether you would or would not? >> senator, what i will commit is that i will obey all the

rules of stare decisis, that if a question comes up before me about whether casey or any other case should be overruled, that i will follow the law stare decisis, applying it as the court has articulated it applying all the factors, reliance, workability, being undermined by later facts and law, all the standard factors and i promise to do that for any issue that comes up, abortion or anything else i'll follow the law. >> well, i think that's expected and -- well, i guess i've gone as far as i can. let me go to another issue. this country is facing great gun violence. there has been a surge in gun sales during the covid-19 crisis, which has led to more lives being needlessly lost. according to the gun violence

archive there were 60 mass shootings in may alone that killed 40 people, hurt 250 more. also there has been a troubling spike in gun sales. americans bought approximately two million guns this past march. it is the second highest month ever for gun sales. that figure does not take into account all the gun sales that could not be completed because the purchaser failed a background test, a check, excuse me. a number that has also skyrocketed. this past march the f.b.i.'s background check system blocked 23,692 sales. more than double the 9,500 sales blocked in march of 2019. do you agree that federal,

state and local officials should try to prevent gun violence during a pandemic? >> well, senator, of course the constitutionality of any particular measure that was passed by state or local governments or by this body would be subject to the same judicial process i described with senator graham. what i will said because it's descriptive of heller. heller leaves room for gun rig r*eglation and why a lot of litigation and i'm constrained not to comment on the limits of it. heller does not make a right absolute. i said so in the opinion. >> let me ask one more question. in a recent dissenting opinion that you wrote, you said there was, quote, no question, end quote, that quote, keeping guns out of the hands that are

likely to misuse them is a very strong governmental interest. do you stand by that statement? >> so i don't -- let's see. i can't remember precisely the words of canter, the case that i dissented. kanter versus barr. i stand by that. the original meaning of the second amendment. i went through detailed history in that case, does support the idea that governments are free to keep guns out of the hands of the dangerous. so, for example, the mentally ill, others who would be likely to misuse guns. >> so where does that leave you on roe? the chairman asked i thought a very good question. for many people and particularly for women this is a fundamental question. we all have our moral values

and religions and we live by that. i respect you and your family for doing just that. but this is a very real problem out there. and if you could be more specific in any way with respect how you would view your place on the court with respect to controlling weapons in this country. >> i think what i can say is that my opinion in kanter shows how i approach questions of judicial philosophy. i spent a lot of time in that opinion looking at the history of the second amendment and looking at the supreme court's cases and so the way in which i would approach the review of gun regulation is in that same way to look very carefully at the text, to look carefully at what the original meaning was. that was the method that both the majority in dissent and heller took. i promised i would come to that

with an open mind applying the law as i could best determine it. >> okay. let me move on. one of my constituents, christina garcia, was able to obtain insurance coverage and have surgery that saved her eyesight only before the affordable care act. her experience is not unique. senator tammy baldwin has a constituent, jimmie anderson, in her home state of sko and she asked this story be shared. jimmie is a 34-year-old and member of the wisconsin state legislature. in 2010 a drunk driver hit the family's car as they were returning home from celebrating jimmie's 24th birthday. jimmie's mother, father and little brother were killed in the accident. jimmie was paralyzed from the waist down. his medical recovery was

intense. as jimmie has said, quote, doctors managed to patch me up with dozens of stitches and multiple surgeries and about a pound of steel on my spine, end quote. but soon after, his insurance company told him he was nearing his lifetime maximums and he would have to pay for the rest of his healthcare expenses. as jimmie explained, quote, with hundreds of thousands of dollars still left to go i don't know what i was going to do. i was scared. i was terrified, i was just a student. i didn't have that kind of money. fortunately, a few days later the insurance company sent him another letter. this one informed him that the provisions of the aca had kicked in which meant there were no longer lifetime maximums and his care would be covered. in jimmie's own words, i was able to put my life back

together and i credit the affordable care act for that. judge barrett, how should the loss of aca's protection against lifetime coverage caps, caps that can be used to end coverage for life-saving care, factor into a court's consideration of the validity of the aca? >> senator, so far as i know, the case next week doesn't present that issue. it's not a challenge to pre-existing conditions, coverage or to the lifetime maximum relief of a cap. >> what is your view? >> of how it should factor in? let's see, i think that any issue that would arise under the affordable care act or any other statute should be determined by the law. by looking at the text of the statute, by looking at

precedent, the same way that it would for anyone. and if there were policy differences or policy consequences, those are for this body. for the court it's really a question of adhering to the law and going where the law leads and leaving the policy decisions up to you. >> for me, my vote depends a lot on these responses because these are life or death questions for people. it is my understanding that you were critical of justice roberts for upholding the aca stating that he, quote, pushed the affordable care act beyond its plausible meaning to save the statute, end quote. and in what way did justice -- did the chief justice go beyond the aca's plausible meaning? >> so i've written about this and that description is consistent with the way the

chief justice describes in his own majority. that was king versus burwell where the court had to decide whether established by a state with exchanges made by the federal government. the majority in that case acknowledged that treating the phrase established by a state as including exchanges established by the federal government was not the most natural reading but for other reasons. other policy reasons and cannons of interpretation they chose to adopt the less natural reading. >> you see, for me the case coming up california versus texas puts a whole new weight on your nomination. because the affordable care act is now being so well accepted. i represent the largest state,

as does senator harris, that we have. and there are just over 10 million people dependent on the activities under this act. and that they be sustained. and so there is really great concern about what your view is. that case is coming up. can you give us at least your view? >> well, senator, the issue in the case that's coming up doesn't involve -- it is not the same issue as the ones in the sebelius or cain versus burwell. it is a different issue. >> then give us both. >> well, let's see, so what i've said what you quoted to me is that i thought the interpretation of the phrase established by a state was stretched when the court held it was established by the federal government. that's not the issue in

california versus texas. the issue in california versus texas is if whether now that congress has just completely zeroed out the mandate, whether it's still a tax or a penalty. and even if so, is it constitutional and then even so, is that fatal to the statute? there is a doctrine called serveability which sounds like legal language but what it means, is it okay with the statute, could you pluck that part out and let the rest of the statute stand? or is that provision which has been zeroed out so critical to the statute that the whole statute falls? so really the issue in the case is this doctrine of serveability. that is not something i've ever talked about with respect to the affordable care act. honestly i haven't written anything about serveability that i know of at all. >> so you have no thoughts on the subject. >> it's a case that's on the

court's docket and the canon's of judicial conduct would prohibit me from expressing a view. >> i'll move on. on july 30th, 2020, president trump made claims of voter fraud and suggested he wanted to delay the upcoming election. does the constitution give the president of the united states the authority to unilaterally delay a general i election under any circumstances? does federal law? >> senator, if that question ever came before me i would need to hear arguments from the litigants and read briefs and consult with my law clerks and talk to my colleagues and go through the opinion writing process. so if i give off the cuff answers then i would be basically a legal pundit. i don't think we want judges to be legal pundits. think we want judges to approach cases thoughtfully and with an open mind.

>> okay. let me try something else. in 2017 in a case called eeoc versus auto zone, the 7th circuit, your circuit, issued an opinion which permitted an employer to intentionally assign its employees to specific stores due to their race. the dissent in this opinion argued the decision permitted employers to legally establish separate but equal facilities and argued if upheld this decision would be, quote, contrary to the position that the supreme court has taken in analogous equal protection cases as far back as brown versus the board of education. the case was appealed to the full panel of the 7th and you sided as i understand it with the majority to deny a rehearing and let the opinion stand.

is that correct? >> that is correct. and i think i need to give a little context to what it means to vote to deny and to rehear something on bonk. our court just like the supreme court doesn't take cases just because we think the panel got it wrong. there is a lot of deference to panels. rule 35 in the rules of appel yat procedures constrains and limits the time of the court to hear the case. i was not on that panel and i did not express a view on the merits. it's like a -- it's not a vote that expresses the view on the merits. it was a statutory case, not an equal protection case. >> let me ask you a question as a person. if an employer can transfer an employee based solely on his or

her race and that does not constitute an adverse employment action because it was purely lateral job transfer, please explain what factors must be present for a policy based on race to violate brown versus the board's prohibition of -- >> it turned on statutory language in title vii. i didn't express a view on the merits so i can't comment on whether i think that the panel majority got that right or got that wrong. that's an issue that may welcome before me even in the 7th circuit. i may press for its overruling and have to decide whether that precedent was wrong. >> as a person do you have a general belief? >> as a person i have a general

belief that racism is abhorrent. >> that racism is what? >> abhorrent. >> i think we would all agree with that. so how should a lower court in the 7th determine when race based policies could constitute a materially adverse employment action? well, i'm not aware of cases presenting exact same facts as that auto zone. >> just asking for your view. >> you know, i know that the material adverse consequence was the standard at issue in that case. i have to confess i would need to look at the statute and the precedent to -- well, even if i had a specific hypothetical in front of me, i couldn't really say without looking at the statute and the precedent what factors are involved because i wasn't on that panel and haven't decided a similar case.

>> okay. let me go to another issue. the issue of lgbt equality is very personal for me. i spent two decades as a county supervisor and mayor of a city. i watched firsthand as the lgbt community fought for legal recognition of their lives, their relationships, their personal dignity. i was there before the law and i saw in confident what was happening. i want to speak briefly about one couple. del and phyllis who i met in the 1970s. vibrant members of san francisco's community. i was president of the board of supervisors. they worked with me to pass a city wide ordinance in 1978 that provided critical protection against discrimination in employment, housing and public accommodations. at that time this was one of

the strongest protections for the gay community in the entire nation. we've come a long way since then and i think we should never go back. in june of 2008, 58 years after they met, my two friends were finally able to marry when the california supreme court ruled that same sex couples cannot be denied the fundamental right to marry. del died two months later. because of the federal defense of marriage act, phyllis was denied social security survivor benefits even though her spouse had paid into this basic safety net for her entire working life. phil had to rely on the help of friends and fellow activists. in 2013 as you probably know because you know so much about this, usv windsor, the supreme

court struck doma down. two years later in another case, the supreme court recognized that the fundamental right to marry could not be denied to lgbt americans. both decisions were decided by a 5-4 margin. justice ginsburg was in the majority. justice scalia dissented in both cases. now, you said in your acceptance speech for this nomination that justice scalia's philosophy is your philosophy. do you agree with this particular point of justice scalia's view that the u.s. constitution does not afford gay people the fundamental right to marry? >> senator feinstein, as i said to senator graham at the outset, if i were confirmed you would be getting justice barrett, not justice scalia. so i don't think that anybody should assume that just because

justice scalia decided a decision a certain way that i would, too. i'm not going to express a view on whether i agree or disagree with justice scalia for the same reasons i've been beginning. justice ginsburg used this to describe how a nominee should comport herself at a hearing, no hints, no previews, no forecasts. that had been the practice of nominees before her but everybody calls it the ginsburg rule because she stated it so concisely and it has been the practice of every nominee since. i'm sorry to not be able to embrace or disavow his position but i can't do that on any point of law. >> that's too bad because it's a point forlage numbers of people in the country. i understand you don't want to answer these questions directly. but the great -- you identify

yourself with a justice that you, like him, would be a consistent vote to roll back hard-fought freedoms and protections for the lgbt community. and what i was hoping you would say is that this would be a point of difference where those freedoms would be respected. and you haven't said that. >> senator, i have no agenda and i do want to be clear that i have never discriminated on the basis of sexual preference and would not ever discriminate on the basis of sexual preference. like racism i think discrimination is abhorrent. on the questions of law, however, because i'm a sitting judge and because you can't answer questions without going through the judicial process, i can't give answers to those very specific questions. >> okay. thank you very much. thanks, mr. chairman.

>> senator grassley. >> judge, welcome you again and you can rest for a minute because i've got some things to say to my colleagues but more importantly so people around the country understand what is going on here. first of all, for your family and friends, i'm sure they are very proud and they ought to be. i think everybody recognizes your sharp intellect, a deep understanding of and even great reverence for the constitution. your legal experience and public service are impressive. your dedication to mentoring young students and women in the legal profession ought to be admired by everybody in all respects you are exceptionally qualified to be a justice. many groups and individuals have written in strong support. so i guess now that the chairman is gone i will ask as

the next one ranking i got some letters from 21 state lieutenant governors and from 20 secretary of state that i want to put in the record at this point. before i question, i have a few points to make. yesterday my democratic colleagues spoke about their concern that you, judge, wouldn't uphold certain laws including the affordable care act and that you would strip americans of their healthcare rights and those protections that come with it. these opponents said that republicans just want to confirm you so that you, quote, will carry their policies forward. meaning republican policies forward on the supreme court. but this only shows democrats fundamentally misunderstand what judges are supposed to do. a judge is supposed to

interpret laws in an impartial manner consistent with the constitution. republicans aren't interested in seeing judges quote, unquote, carry their policies forward. republicans want judges to interpret the law and the constitution, not make law. we want judges that won't impose their policies and personal preferences in their decision making, plain and simple. policy making is not the proper role of the judicial branch. that role is reserved for legislative and executive branches. as the judge said, the political branches, elected by and accountable to the people. you have a lifetime appointment and if you do law making, we can't vote you out of office. law making is our job. if people don't like what we do they can vote us out of office.

some other points on the affordable care act. the democrats continue to misrepresent or claim to know barrett's view on affordable care and access to healthcare. in fact, they made it their entire game plan yesterday. and i suppose today we'll see it again. but we should dispense with the total fiction the democrats are pedaling apparently her concerns would keep roberts ruling in the obama decision disqualifies her. democrats are painting the judge as heartless and on a mission to scrap the healthcare law. frankly, that's absurd. not only is judge barrett a mother of seven, she has

children with pre-existing medical challenges of their own. no one on this committee or anyone has any right to suggest that she doesn't care about access to healthcare or protection for the vulnerable. now getting back to the technical concerns about roberts' affordable care act opinion, first and i got four points along this line. her comments dealt with robert's statutory interpretation of just one provision of the law. that provision is no longer even in effect. in 2017 congress zeroed out the so-called tax. the tax connected with the individual mandate. the question before the court this fall our entirely separate. she never ruled on the affordable care act nor commented on how she would

vote, meaning the judge, how she would vote. so it's pointless to speculate. but we'll get a lot of speculation during this election season just 2 1/2 weeks before the election. now second point, lawyers and legal academics often consider a court reasoning even when they have no disagreement with the outcome of the case. for instance, "the new york times" recently reported ginsburg, before joining the supreme court, quote, wasn't really fond of roe vs. wade. she didn't like how it was structured, end of quote. i don't know why democrats have a different standard for you, judge barrett. now a third point. it's blatantly inconsistent for the left to use this line of attack. we all know that president

obama said that the aca legislative mandate was not a tax. even liberal jeffrey tubein said roberts' argument was, quote, not a persuasive one, end of quote. so judge barrett's analysis of roberts' legal reasoning is well inside the mainstream. now a fourth point. more inconsistency. the same democrats vilify judge barrett as a threat to those with pre-existing conditions. well, it seems that those same people just filibustered the covid relief bill that would have protected pre-existing conditions. they're the ones that blocked the covid relief legislation.

the republicans remain ready. seems to me it's the other side that are really playing politics with healthcare during a pandemic. the truth is, judge barrett already said, quote, a judge must apply the law as written, end of quote. she further commented, quote, to decide cases according to the rule of law, beginning to end, end of quote. that's what we should all look for judges to do. now for my first question. when justice scalia came to my office before his confirmation, and i think i brought this up with every nominee to the supreme court by republican or democrat nominees, i don't think i brought it up in my private conversation with you but i always bring up what is your attitude about legislative history? let me ask my question first,

i'm sorry. >> i thought that was it. >> i think you probably know, judge, how important it is. i want to know how important legislative history is to you. when is it appropriate to look to legislative history and are there some circumstances when more appropriate than another -- i would like to also give your view on legislative history compared to what i heard from scalia 35 years ago. >> sure. so i'm very comfortable talking about the use of legislative history. that's a matter of interpretive philosophy. what governs, of course, is the text of the statute. so the legislative history can never supersede the text and it should never substitute for the text of the statute. justice scalia as was well-known railed against the use of legislative history. i think it was because at the time that justice scalia went

onto the d.c. circuit before he was on the supreme court the use of legislative history had gotten out of control and many courts were saying things justice scalia in his book quotes this line from a brief, the legislative history being unclear we turn to that other reliable guide in statutory interpretation, the statute. that has things backwards. and so i think justice scalia really tried to clean that up and say listen, the priority is the text. when the text answers the questions you don't go to legislative history and some reasons to be careful. legislative history can be long. a famous quotation from a judge that legislative history is like going to a cocktail party and picking out your friends. it can be easy to manipulate. there might be something in there for everyone. so as a general rule, i don't look to legislative history when i'm deciding cases. i wouldn't say that it would

never be relevant, even justice scalia himself said that there could be instances, for example, if you were trying to determine whether a term used in a statute, how it was used, if it had a technical any meaning or how it was understood. it might be an appropriate time to consult legislative history and scalia looked at legislative history to see what seemed unthinkable actually was unthinkable. >> now i would like to go to a specific case. i would like to go to united states versus that involved the interpretation of section 403 of the first step act which i had a big part, along with senator lee and senator durbin, in getting that passed in 2018. this is the most significant criminal justice legislation in

a generation. our criminal justice system can't just punish and deter. it must also rehabilitate and promote successful reentry into society. the first step act accomplished these goals through prison and sentencing reform. it was well-known that the goal of the first step act was to make smart and cost effective changes to the criminal code and to reduce risk of recidivism. i want to ask you about your dissent in the case. whether the sentencing reform of the first act applied to a defendant whose sentence had been vacated. here the defendant had been convicted but not resentenced at the time of the first step act becoming law. the majority opinion cited the plain meaning of the first step act and congressional intent in finding that section 403 would apply to a defendant with a

vacated sentence. your dissent as i understand it argued among other things that congressional intent shouldn't be heavily relied on since, quote, every statute requires a resolution of competing policy interests, end of quote. president trump signed the first step act into law only two years ago. so wouldn't rereferencing congressional intent be accessible and relevant. then another question. why did you find the majority reliant on legislative history unpersuasive? >> the majority. it was a very difficult case. voted on bonk by our full court and the quote from my dissent that you are pointing to was actually we had a dispute about what the plain text of the statute required. that portion of my dissent you just read was saying i thought that the majority had permitted

the policy goals of the act to supersede the text. and in dissent, i argued that the text drew the line after someone had been sentenced. so if someone had already been sentenced on the date of the first step act's passage and the relevant language was if a sentence had already been imposed, i thought with my dissenting colleagues it was consistent with the approach the 3rd circuit took. in this case this involved a resentencing and resentencing can happen years after and so it didn't seem to -- my dissenting colleagues and i looking in the statutes that the plain language of the text supported the majority's approach to it. >> i think on my next question on the same case you may have just partially answered it.

let me go ahead with my lead-in and then also a question. both the majority and your dissent in the case reviewed 403 of the act under a plain reading of the text. as an author and leader in this law's passage i would like to discuss how a plain reading of the statute could lead to varying outcomes. the section in question contemplates when a sentence has been imposed on a defendant, according to the text of the statute and relevant case law, a defendant's sentence if vacated creates a clean slate. that means defendant is placed in the same position as if he had never been sentenced. but your dissent comes to the opposite conclusion on whether a sentence has been imposed. note that i agree with you that the laws need to be read and interpreted literally. so my question is this, how could we come to different conclusions?

>> well, that language that it did not apply to defendant on whom sentences had already been imposed. my dissenting colleagues and i said the language is sentences. it doesn't say invalid sentences and one could certainly say if asked if someone had been sentenced, yes, he was sentenced but that sentence was later vacated. you're right that the majority relied heavily on the clean slate principle but in my review of the law, this clean slate principle wasn't really present because the sentencing before and struck district courts applying the guidelines at sentencing to apply those that were in effect on the original sentencing. i thought that the clean slate principle they were pushing a little too hard on it and then, you know, there is certainly unfairness. the first step act, its policy is clearly to bring justice to

sentencing. but whenever you draw a line and who gets the benefit of a law and this is especially acutely true in the sentencing area, it is very difficult and some people ran on either side of the line will not get the benefit of the law wherever you draw it. for example, in this case this defendant had a co-defendant whose case came up together. they had been tried together and initially sentenced together. but the first man's appeal took longer to resolve and resentencing took longer because of a lot of delays. there was unfairness there, too in the majority's approach. because the defendant's approach despite the fact he was more culpable found out with a sentence that was 15 years less. >> that's the end of my questioning on that. let me make a comment before i go to my next question. my position has always been that legislative history can be

instructive in effect to the statute. judges shouldn't completely disregard it. the legislative branch can be more careful but i think judges should pay attention to congressional intent as set forth in history when there might be a dispute about how to interpret the statute. justice ginsburg at her hearing, quote, and you've discussed this a little bit already but deserves emphasis because you'll go through a lot of this business of not being -- i have know legitimately not being able to comment on a prospective case. she said, quote, a judge sworn to decide impartiality can offer no forecast, no hints for what would show not only disregard for the specifics of this particular case, it would display disdain for the entire

judicial process. obviously we all know, end of quote. we all know that that's the ginsburg standard. the underlying reason for this rule is that making promises or giving hints on how a judge would rule in a case undermines the very independence of our system but you are going to be asked about your personal views as you just have been on various topics. and how you might correctly decide. of course, you know the judicial nominee should never promise their future votes on the bench in exchange for the president's nomination or a senator's support. you would be showing the opposite of independence. so my question. so i ask you do you agree with the ginsburg standard that it goes to the question of judicial branch's independence for legislative history? all you have to do is say yes.

>> yes, it reinforces judicial independence. >> this is something that a lot of people's suspicion so i want to ask you. have you made any promises or guarantees to anyone about how you might rule on case or issue that might come before you if you are confirmed to the supreme court? >> i want to be very, very clear about this, senator grassley. the answer is no. and i submitted a questionnaire to this committee in which i said no, no one ever talked about any case with me. no one on the executive branch side of it. and that's one reason you asked that question i think as a committee is that you don't -- you want to know that no nominee has made any pre-commitments. i didn't make any precommitments on not asked on the executive branch side. i can't make any pre-commitments to this body, either. it would be inconsistent with judicial independence. >> i know the answer to my last

question and i'll reserve the rest of my time. the democrats claim you are being put on the supreme court so you can vote to repeal the affordable care act. is that your agenda? is your goal repealing the affordable care act? have you committed to the president or anyone else that you will vote to appeal the affordable care act if confirmed to the court? >> absolutely not. i was never asked. if i had been that would have been a short conversation. >> i think that your record shows that you will be a faithful judge that takes each case seriously and approach each case in an unbiased way rather than a policy agenda in mind. we can reserve our time? >> absolutely. senator leahy. i'll introduce the letters by senator feinstein will be introduced into the record without objection. senator leahy, are you with us? >> i am. do you hear me there? >> yes, sir. see if we can get you on the

screen here. there you go. the floor is yours. >> thank you. thank you very much. and judge, i was watching as you introduced your family. thank you for doing that. it's obvious your family is very important to you as they should be. my wife and i have been married for 58 years and our children and our grandchildren are -- they are the most important things in our life. and it's good to see you introduce the family. now, as a senator, of course, another important part of my life is referring to and representing the people of vermont. and let me talk about some of the things i've been hearing from vermonters. they walk up to me in the grocery store, coming out of church and happy to express

their views. they are concerned about what the republicans affordable care act would mean for them. do you know how many americans have obtained insurance through the affordable care act? >> i do not. >> it's more than 20 million. and do you know how many children under the age of 26 can stay on their parents' insurance xwaus of the affordable care act? >> i do not. >> 2.3 million. and do you know how many americans are covered under the affordable care act's medicaid expansion? >> i do not. >> it's a little more than 15 million. i look at that because i look at the people -- i think of alice johnson, a single mother, she is childhood cancer survivor.

works as a nanny in vermont. she relies on medicaid for her doctor's visits, blood draws and other testing. all that to make sure her leukemia stays in remission. she tells me she stays awake at night worrying about losing medicaid. if the republicans are successful with what they're trying to do november 10th alice and many other vermonters enrolled in medicaid expansion will be left behind. the contract -- that is seen as a pre-existing condition the disease she had as a teen. do you know how many million americans have tested positive for the coronavirus virus and survived? >> i do not.

>> more than 7,700,000. those are people considered to have a pre-existing condition. and one of the most common pre-existing conditions is diabetes. the cdc estimates that 34 million americans, 1 in 10 americans, have diabetes. it shows the aca's medicaid expansion is the single most important factor for expanding access to affordable insulin. another vermonter died -- [inaudible] for years she has depended on medicaid to keep her alive and out of bankruptcy. now president trump recently

said he made insulin as cheap as water. i wish he had told the truth on that. we all know it's not. unless you have insurance the pay for insulin. without this insurance do you know how much. unlike what the president says insulin is not as cheap as water. do you have any idea how much her expenses for insulin would increase? >> no, i do not. >> thank you. and i wouldn't expect you to. no reason why you should. but leslie's costs would more than triple. go up by 11,215 a year in a state where the per capita income the $33,000. so i'm not suggesting that you are callous or indifferent to the consequences if the

affordable care act is overturned. you know these are real cases. and i think you're a sympathetic person. but i do believe that the president selected you because he wanted somebody with your philosophy and he had a reason for it. and some will pretend that it's a mystery as some of my colleagues have. where justice barrett would do when the supreme court takes up the latest attack on the affordable care act. president trump has promised his nominees would overturn the aca. in the official republican party platform. the case next month he said we want to terminate healthcare under obamacare, aca. and within hours of nominating you, he again repeated his hope that aca would be overturned.

i know i mentioned my friend, the chairman, senator graham, knows the president as well as anyone here. he goes golfing with him and spends a lot of time with him. and i think chairman graham knows that the president would not repeatedly promise the american people that his judges would overturn the aca if he didn't mean it. i think senator graham would have to agree that the president's confident judge barrett would side with him on november 10th. that's not necessarily a question either one of you but the chairman has an opportunity to respond if he wants. but i think we know the president is confident. it hasn't been an issue in the

last decade the -- [inaudible] more than his zeal to overturn the affordable care act. in fact, i counted up the other day. i was surprised at the answer. you know, judge barrett, that republicans in congress have voted to repeal or gut the aca more than 70 times? 70 times in the last 10 years. and when they failed, they turned to the court. do you know how many republicans on this committee have joined amicus briefs urging course to overturn the aca in the sebelius case and the burwell case? >> how many republicans had voted. was that the question? >> do you know how many republicans in this committee have joined in amicus briefs urging the courts to overturn. >> i don't.

i'm having a little bit of trouble hearing senator leahy. is there a way for the volume to be turned up? >> yes, ma'am. >> i'm sorry for. >> it is on our end, senator leahy, that's okay. you can repeat the question. >> well, how is it coming through now? >> very good. >> very well, thank you. >> as you know, i've stated it simply because i don't think it is safe for you or anybody else to be there. my question is, do you know how many times republicans on the committee you are sitting before have joined amicus briefs urging courts to overturn the affordable care act? >> i do not, know. >> it's at least nine by my count. in fact, they've already weighed in on the november 10

case. two weeks ago the senate voted on whether to side with the president -- with president trump in texas versus california and 11 of the 12 senators on this committee sided with the trump administration and asked to kill the aca. now, i understand that you will not share your views on texas versus california. i know judicial canon386 and commenting may give future -- [inaudible] an indication of which way you would rule. is that correct? >> yes, that is correct. >> okay. my concern --

my concern is that you have already given us every indication every time you weighed in, it hasn't even been close. you repeatedly disagreed with chief justice roberts. from what you said you clearly believe the statute is unconstitutional. the president has made very clear he expects you to side with him. let me tell you another area where he expects you to side with him. he expects you to side with him in an election dispute. he says he needs a ninth justice because he has these courts look at the ballots and he said the election will be rigged. the recusal statute 28 usc 455 requires recusal where impartiality might reasonly be

questioned. now, when the president declares he needs this nominee to secure his reelection, and then the nominee is rammed through the senate in record time during the middle of an election, some are going to question that nominee's impartiality. would you commit to recuse yourself if any dispute arises out of the 2020 presidential election? >> senator leahy, i want to begin by making two very important points and they have to do with the aca and with any election dispute that may or may not arise. i have had no conversation with the president or any of his staff on how i might rule in that case. it would be a gross violation of judicial independence for me to be asked about that case and

how i would rule or make such a commitment. i also think it would be a complete violation of the independence of the judicialary for anyone to pout a justice on the court as a means of obtaining a particular result. that's why i was mentioning to senator grassley the questionnaire that i filled out for this committee makes clear that i have made no pre-commitments to anyone about how i would decide a case out of respect for article 3 as a co-equal independent branch of government. on the recusal question. >> i might say you gave a similar answer when i talked with you. i had a question, of course, because one of the members of our judiciary committee said he would not support you unless he had a commitment that you would vote that way. >> vote on the election?

>> on roe v. wade and i understand what you are saying. notwithstanding, you have not made that commitment to anybody, is that correct? >> senator leahy let me be clear. i have made no commitment to anything not in the senate. not at the white house about how i would decide any case. >> the reason i ask is we also have the question of appearance. judge joan larson of the 6th circuit sat next to you during your 2017 hearing. she was confronted with the issue as a judge on the michigan supreme court in 2016. then president elect trump challenged a ballot recount. judge larson was on his short list for the supreme court at the time. she found it was a conflict and

required her recusal. you were also on the short list and then you were actually chosen. now he is not the president elect he is the president. the president makes a similar thing as he did to judge larson and what she looked at. he is counting on you to deliver him the election. judge larson said that was a conflict for her. and would have to recuse. you did not find his comments -- >> senator leahy, i am not familiar with judge larson's decision. she made it once it was presented to her in the context of an actual case where she had to weigh her obligations. if presented to me i would, like judge larson, apply that statute and i recently read a description by justice ginsburg

of the process that supreme court justices go through in deciding whether to recuse. and it involves not only reading the statute, looking at the precedent, consulting counsel if necessary, but the crucial last step is that while it is always the decision of an individual justice, it always happens after consultation with the full court. so i can't offer an opinion on recusal without short-circuiting that entire process. >> well, i think what i worry about and i've said over and over again that if the court is politicized from the supreme court down through other courts, i have argued cases in all of them, in several courts, i've always assumed that judges are totally impartial no matter what president had nominated

him. but this president hasn't been subtle and he expects his nominee to side with him in election dispute. i'm thinking of the credibility of our federal courts and i hope you would at least consider that. the president said he needs a ninth justice because he is counting on the court to look at the ballots in case he loses because if he lost, that meant the democrats had rigged the election. the recusal statute as you know as as well as anyone in 28 us 4 requires a justice cuse herself in any proceeding in which impartiality might reasonly be questioned. now, whether you like it or not, and i suspect you probably do not, the president has placed both you and the supreme court in the worst of positions.

and so let me ask you a different type of question. i assume you agree with me it's critical for americans to have confidence in the supreme court, is that true? >> that is true. and i agree with your earlier statement that the court should not be politicized. >> thank you. i voted for an awful lot of republican and democratic nominated justices, as i did for chief justice roberts. i wanted to keep the supreme court and other courts out of politics. but when the president repeatedly declares his -- he needs his nominee as a way of securing his reelection, and that nominee then is rammed through the senate in the

middle of that election, well you can see where the nominee's impartiality may be questioned. so my request is in protecting the confidence in both you and the court, are you able to commit to recuse yourself from if it arises out of the 2020 presidential election. >> i commit to fully andfully apply the law of recusal and to consider any appearance question. i will apply the factors that other justices have before me in determining whether it requires my recusal. i can't offer a legal conclusion about the outcome of the decision i would reach right now. >> which is sort a response on recusal. you laid out the case for blocking president obama's supreme court nominee, judge

merrick garland for 10 months during the election year. scalia was the most staunch conservative on the court and we were personal friends. i voted for him. you claim the moderate and judge garland would dramatically flip the balance of the court. you said it is not a lateral move. that's your quote. it was not a lateral move. so now you are nominated to replace justice ginsburg, the most staunch champion for civil rights of the court. you claim that justice scalia is your -- he was the opposite side of justice ginsburg and countless civil rights cases. would you say that replacing justice ginsburg by yourself is not a lateral move like you encouraged when you supported

the blocking of president obama's nominee judge garland. >> i want to be very clear. that's not quite what i said in the interview. it was an interview i gave shortly after justice scalia's death and at that time both sides of the aisle were arguing that precedent supported their decision. and i said why i had not done the research myself my understanding of the statistics was that neither side could claim precedent. that this was a decision that was the political branches to make. i didn't say which way they should go. i said it was the senate's call. i didn't advocate or publicly support the blockade of judge garland's nomination as you are suggesting. >> you said it was a lateral -- would not be a lateral move. >> what i was suggesting is

that it was unsurprising that there was resistance as a political matter to that nomination because it would change the balance of the court. that's -- >> i was surprised there was resistance insofar as there is so many at that time republican members of the judiciary committee who had stated publicly before the vacancy that they thought merrick garland would be a good person to have on the court and somebody that could appeal to both conservatives, liberals, and moderates. >> i have full respect for judge garland. i'm sorry. i missed the first part. could you repeat the question? >> it's not a question.

we had many members of our committee a number of republicans who prior to the vacancy said merrick garland would be a good person for president obama to nominate because he could appeal to moderates, conservatives and liberals. their response was we can't have a nominee confirmed by one party that's in control of the senate and nominated by a president of another party. as i pointed out. i was here when democrats controlled the senate and president reagan nominated anthony kennedy. and in an election year democrats confirmed him. but let me go to another area.

three-judge panel of the 7th circuit struck down three provisions of an indiana law restricting reproductive rights. stated indiana requested the law review of just one of the provisions. the disposition provision. when they reviewed the case leaving intact the panel decisions to strike down the law, you joined a judge in dissent. then the dissent went out of its way to address a separate provision not before the court. the so-called reason ban. your dissent called it a eugenics statute. judge barrett. the issue before you is a narrow one but you limit your dissent to the one issue. the state of indiana was asking

you to review. >> so we dissenters from that hearing on bonk first of all defended on the feetal remains disposition portion. they reversed the panel. on the ooun eugenics. we had many other states enter the state urging us to take up the claim. what the dissent did was explain why he thought it was an open question but one left to the supreme court and we didn't reach any conclusion with respect to it. >> well, and whatever position you took would not have changed the decision of the court. now, in 2006 you signed open

letters published [inaudible]. on one side the advertisement described the legacy of roe v. wade as barbaric. the other side it stated you oppose abortion, defend the right to life and fertilization and natural death and i have known other judges who take that position. what was not mentioned in the letter the organization that led the effort. in vitro fertilization is equivalent to manslaughter and should be prosecuted. do you agree with them that ivf is tantamount to manslaughter? >> senator, the statement that i signed as you said simply said we -- i signed it on the way out of church. it was consistent with the

views of my church and simply said we support the right to life from conception to natural death. took no position on ivf. >> i understand that and as i said i voted for judges who take the same position you development -- i do. do you agree with the st. joseph party right to life that sponsored it that ivf is tantamount to manslaughter. >> well senator, i signed the statement that you and i have just discussed and you are right that the st. joseph county right to life ran an ad on the next page but i don't even think the ivf view you're expressing was on that page. regardless i have never expressed a view on it. and for the reasons that i've already stated, i can't take policy positions or express my personal views before the

committee. my personal views don't have anything to do with how i would decide cases and i don't want anybody to be unclear about that. >> let me talk about some of the positions you have taken. before you became a judge you were paid by the alliance defending freedom for five electors. you gave them originalism at the black stone legal -- [inaudible]. now i recall being asked about some of their controversies. were you aware of the decades long efforts to recriminalize homosexuality? >> i am not aware of those efforts, no. >> okay. what were the reading materials they had for the program that

you lectured to several times, that they filed a brief supporting -- in support of state laws punishing private homosexual activity. they celebrated when india restored a law punished sodomy for 10 years in prison. now, whether you believe that being gay is right or wrong is irrelevant to me. but my concern is what -- you work with an organization working to criminalize people for loving a person that they are in love with. so that is what worried me. >> i wasn't sure if you wanted

me to answer that. >> well, go ahead. >> my experience with the black stone program which i spoke was a wonderful one. it gathers best and brightest christian law students from around the country. and as you said, i gave a one-hour lecture on originalism. i didn't read all of the material that the students were given the read. that had nothing to do with my lecture. i enjoyed teaching the students about what my specialty was, constitutional law. nothing about any of my interactions with anyone involved in the blackstone program were ever indicative of any kind of discrimination on the basis of anything. >> as you know, same-sex marriage, for example, and senator feinstein said it at the beginning, it's legal in my state and has been for some time. do you feel that should be --

[inaudible]. >> berg f*eld clearly says there is a constitutional right to same-sex marriage. >> and you agree with that stare decisis >> i won't give a thumbs up or thumbs down to any particular precedent. it is precedent of the supreme court that gives same sex couples the right to marry. >> well, you once wrote an opinion that -- [inaudible]. reversing course demands a special justification over and above the belief that the precedent was wrongly decided. do you agree with that? >> i agree with that. the doctrine of stare decisis itself requires that.

>> i have relied on stare decisis. i thank you for your answer. chief justice roberts -- >> senator leahy. we're well over a minute over so if you -- >> i'm sorry. mr. chairman. i don't have a clock. >> i totally understand. >> i appreciate it and i will look forward to the next round of questioning. >> thank you. we'll make sure that happens. very briefly before we go to senator cornyn. senator leahy mentioned my time with the president. i think probably all of us on this side were consulted by the president regarding how to fill the opening. he gave me a list of a small list of names, all women, you were on it. i was enthusiastic about everybody. very enthusiastic. a play a lot of golf in the president i guess. i've enjoyed it. we talk about a lot on the golf

course, some policy. killing soleimani. i have never talked about receiveability with the president. senator cornyn. >> speak for yourself. good morning, your honor. most of us have multiple notebooks and books and things like that in front of us. can you hold up what you've been referring to in answering our questions? is there anything on it? >> the letterhead that says united states senate. >> that's impressive. judge, the best i can understand the objections to your nomination are not to your qualifications, your experience, or training, but it is that you have or you will

violate your oath of office. i find that terribly insulting. they suggest that you can't be unbiased in deciding a case you haven't even participated in yet. i find that insulting as well. almost as -- maybe almost as bad as attacking somebody for their faith and suggesting that disqualifies them from holding a public office is the attack that's being made on judicial independence. something that chief justice rehnquist among others observed the crown jewels of the american constitution and the american system. but i want to just take a little walk down memory lane here. you know, there are a lot of

people who guessed how judges would actually rule on cases. and almost always they've been spectacularly wrong. i was struck by just a couple harry truman said whenever you put a man, he is talking about a man but a man or woman on the supreme court he ceases to be your friend. he said some more colorful things, too. but theodore roosevelt said i could carve out of a banana a judge with more backbone than that about one of the judges on the supreme court. when i think about harry blackman nominated by richard nixon who wrote roe v. wade, as i think about warren berger. they were called the minnesota

twins and over time they became sort of polar opposites on the court. i think about the attacks on neil gorsuch for his unwillingness to make a prior commitment on lgbt issues. he wrote the boss to*k case extending the civil rights acts to gay and transgender individuals. obviously those predictions were wrong. since we're talking about the aca. aca versus acb, i guess, chief justice roberts upheld the affordable care act, as you know. so i would just say that all of these predictions about how judges under our independent judiciary will make decisions are just pure speculation. but i think they are worse than

speculation. i think they're propaganda in order to try to make a political point. so judge, you're not willing to make a deal. >> no, senator cornyn, i'm not willing to make a deal with anyone. i'm independent. >> i just would like to hear maybe some of your thoughts on -- the over field case for same-sex marriage. part of that decision struck down the defense of marriage act, correct? >> sandra: yes, i believe so. >> that was a bill that joe biden voted for? >> i don't know that. >> i do. >> okay. >> joe biden voted. leahy and clinton signed it into law. i'm not asking to get into the

details but differentiate for everybody listening what the approach of a legislator is in voting for a piece of legislation as opposed to the role of a judge interpreting the constitutionality of a piece of legislation. >> they're quite different. a judge isn't expressing a policy view. i tell my students in constitutional law that newspapers do courts a disservice when they say things like court favors same-sex marriage or just giving the headline without showing any of the reasoning that goes into it. courts are not just expressing a policy preference. they are digging in, they are looking at the precedent and the constitution and even when the result cuts against policy preferences, judges are --

>> the difference between us and you you don't run for an election. you don't run on a platform. >> it would be widely inappropriate for me to do so. >> your mentor, justice scalia, said something back in 2005 that i find intriguing but reassuring. he said if you are going to be a good and faithful judge, you have to resign yourself to the fact that you are not always going to like the conclusions you reach. if you liked them all the time, you are probably doing something wrong. do you agree with that? and if you do would you explain what you mean. >> i do agree with it and has been my experience on the 7th circuit so far. it is your job to pass the statutes. it is your job to choose policy.

then it's my job to interpret those laws and apply them to facts of particular cases. they don't always lead me to results that 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 just don't have the power by fiat to impose my policy preferences or choose the result i prefer. that's just 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 and nine people who don't run for election and who serve for life, why in the world should the american people do that? >> well, i think part of the rationale for courts adhering to the rule of law and for judges taking great care to avoid imposing their policy preferences is that it's inconsistent with democracy.

nobody wants to live with the law of amy, my children don't even want to do that. i can't as a judge get up on the bench and say you are going to live by my policy preferences because i have life tenure and you can't kick me out if you don't like them. >> well, thankfully under the constitution even if the supreme court strikes down a statute, congress can come back and revisit that topic. and do so in a way that doesn't violate the constitution as determined by the court. and ultimately we can amend the constitution itself, correct? >> that is correct. >> so 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 nine on the pot om act they're sometimes called. the decisions they make. that's not the final word in our formal government, correct?

>> we are a government of laws, not of men. >> judge barrett i'm almost through but 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 is borne out of my frustration, one of the couple of times i had a chance as attorney general of texas to argue before the supreme court, i argued in a case called sante fe independent school districts versus doe. it was about a common place practice where before football games in texas students would volunteer to offer an invocation or an inspirational poem or saying or something like that. the aclu sued the school district and it made its way all the 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? 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 precedence that i thought needed to be

better organized or that sort of thing. and off the cuff i said well, gosh, the first amendment. and he said what do you mean? and i fell down a rabbit hole of trying to explain without success, because it is a very 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 is a notoriously difficult area of the law. and to the extent there is tension in the court's cases, and i'm giving you no better answer than i did to justice scalia that day. it has been something that the court has struggled with for decades to try to come to a sensible way to apply both of those clauses. >> well, i wish you well. >> thank you, senator. >> mr. chairman, i'll reserve the rest of my time. >> for planning purposes if it's okay with the committee

we'll have senator durbin and senator lee and break a half hour for lunch and come back. is that okay? are you okay with that? do you need a break? >> no, that's fine. >> thank you, judge barrett and your family for being here 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 a few questions of you. who came up with this notion, this insulting notion that you might violate your oath? where could this idea have come from? could it have come from the white house? could it have come from the president's tweets of what he expects a supreme court nominee to do politically for him? that's where it comes from and that's where it originated. and you have said very clearly today without equivocation you were not going to be influenced by mr. trump, this committee or

anyone else. the notion that this whole idea of you being used for political purpose is of democratic creation, read the tweets and you have plenty to work with. read the tweets. the second thing i would like to say is i won't spend a lot of time defending the affordable care act although i think it's the most important single vote i've cast as a member of congress period. but i will say when the chairman opened up and said what he did, i was puzzled. three states get 35% of the money? how can that possibly be true? it turns out because those states decided to extend medicaid coverage to the people who lived in the states and his did not. and as a consequence fewer people in south carolina have the protection of health insurance and those that 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 medicaid coverage under the affordable care act. i think it was the right thing to do for indiana as it was for illinois. that's part of the reasoning. the affordable care act is the heart on the democratic side. we believe the supreme court's consideration of that case is going to -- could literally change america for millions of people. i have with me today another group i would like you to at least be aware of because they are pretty amazing people but this is the williams family. they live not too far from chicago. kathy and less have four sons. matt is 27, diagnosed with type one diabetes when he was 13.

the other three williams boys were born with cystic fibrosis. joey is 24, mikey 21, mikey's twin, tommy passed away in january 2019 from complications. this is the last photo that was ever taken of their full family. they wrote me we cannot imagine having to go through losing another child. people with cystic fibrosis recall access to high quality specialized care. people with pre-existing conditions like cystic fibrosis can't be discriminated against. the aca's protections insure a ban on annual and lifetime -- mental health services. people with cf and other pre-existing conditions need adequate, affordable healthcare to live longer, healthier lives. that's why we keep bringing this up. real people that we run into all the time.

a chart here. on the republican side there is some controversy as to whether we're right or wrong. a lot of people in each of the state's represented by our republican senators who have their healthcare and literally in some cases their lives hanging in the balance. south carolina, 242,000 people would lose their insurance coverage if the affordable care act were eliminated. 2 million living in the state have pre-existing conditions. you can imagine the list goes on. thank you. here is what it comes down to. you've been critical of the decisions both in sebelius and burwell and we naturally draw the conclusion there will be a third strike when it comes to texas and california. you said it won't effect pre-existing conditions. if the petitioners have their way there won't be an affordable care act.

so give us an insight how you can be so unequivocal in opposing the majority decisions in sebelius and in burwell but have an open mind when it comes to the future of the affordable care act. >> sure. thank you for that question, senator durbin because it gives me an opportunity to make my position clear. when i wrote this was as a law 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 that chief justice roberts described the statutory question. 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'm not hostile to the aca, i'm not hostile to any statute that you have and the cases on which i commented and we can talk at another time about the context and distinctions between academic writing and judicial decision making. those were on entirely different issues. to assume that because i critiqued the interpretation of the mandate or the phrase established by a state means that on the entirely different legal question of serveability i would reach a particular result resumes i'm hostile. that's not the case. i apply the law, follow the law, you make the policy. >> so let's talk about that for a moment from a different issue perspective. bear with me for a couple of questions. have you seen the george floyd video? >> i have. >> what impact did it have on you? >> senator, as you might imagine, given that i have two

black children, that was very, very personal for my family. jesse was with the boys on a camping trip out in south dakota so i was there and my 17-year-old daughter vivian, who is adopted from haiti, all of this was erupting and it was very difficult for her. we wept together in my room and it was also difficult for my daughter, juliette, who is 10. i had to try to explain some of this to them. my children to this point in their lives have had the benefit of growing up in a cocoon where they haven't experienced hatred or violence. for vivian 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 is a difficult one for us like it is for americans all over the country. >> and so i would like to ask

you as an originalist who obviously has a passion for history. i can't imagine that you can separate the two, to reflect on the history of this country. where are we today when it comes to the issue 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 is implicit bias in so many aspects of american life that we have to be very candid about and address. others go further and say it's systemic racism that's built in and we have to be much more pointed in our addressing it. how do you feel? >> so i think it is an entirely uncontroversial that racism persists in our country. as to putting my finger on the

nature of the problem, 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 are hotly contested policy questions that have been in the news and discussed all summer. so while, you know, as i did share my personal experience very happy to be discussed the reaction our family had to the george floyd video, giving broader statements or making broader diagnoses about the problem of racism is kind of beyond what i'm capable of doing as a judge. >> well, i would doubt that. i just 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. i won't press you on that.

i'm going to take you to a case which i have read and reread kanter versus barr, you know the case well. it has already been referred to. and it clearly is a case where you had your day in court. you wrote the sole dissent. 64-page case, 37 pages were your dissent. so you gave to the court i assume a pretty full accounting of your thoughts on the subject. here is the way i understand the case. a fellow named ricky kanter from wisconsin invented pads to be put in a shoe to be sold to older americans under medicare to relieve foot pain and he designed them and submitted them to medicare and didn't get the approval that he was looking for but instead sold them and represented to many customers that they had been approved by medicare.

and so he was charged with fraud. now this wasn't a matter of a casual misapplication of the law. when it was all said and done, ricky kanter of wisconsin ended up spending 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 wrongdoing. 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 fundamentally unfair that the law says that if you've been convicted of a felony you can't own a firearm. i don't know what his appetite is for firearms whether it's a

revolver or ak-47 with a banana clip. he went to court and said it was unfair. it was mail fraud and you are taking away my second amendment rights. 2 out of 3 of your colleagues basically said sorry, ricky, you have forfeited your right to own a firearm because of your conviction of a felony. you took a different approach. the opposite approach. 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, ricky kanter was convicted and it was a felony.

>> $27 million settlement along the way. i would like to take you into your thinking. when heller decision was handed down justice scalia expressly said i'm not taking away the authority of government to impose limitations based on felonies, not violent felonies, felonies and mental illness. he said as much in the heller decision. and yet this man who was your inspiration as you told us all. you decided he was wrong and that it had to be a violent felony. can you explain why? >> i can. we've talked about precedent and in my court the 7th circuit there is precedent saying that that phrase doesn't control as my colleague judge easter brook has said another time. judicial opinions aren't statutes and shouldn't be read as if they were. heller wasn't about the scope of the right, you know, its

application to felons or those who are mentally ill. that passage didn't fully dive down into it. what i did was apply heller's methodology both justice scalia's majority opinion and justice steven's dissent, used an originalist methodology to answer that question and i concluded that based on that history, one couldn't take the right away simply because one was a felon. there had to be a showing of dangerousness. i didn't rule out the possibility that the government might be able to make that showing about ricky kanter. we need to agree we have to be careful because someone is a felon they lose any of their individual rights. >> i want to get to that point but i want to stick with this for a moment more. i'm honored to represent the city of chicago and the state of illinois. it's a great city but it has great problems, too. one of them is gun violence. on average we know in america

100 americans are killed every day by gunfire. 40,000 per year. in a city of chicago more than 3,200 people have been shot just this year. 3,200. according to the city's gun trace report in 2017 the majority of illegally used or possessed fires arms 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 it works. there is a traffic between chicago, northern indiana and michigan going on constantly. gun shows are held in garry, indiana and other places. when they sell these firearms without background checks unfortunately the gang bangers and thugs fill up their cars with firearms and head in the city of chicago and kill people

from infants to older people. law enforcement is fighting it trying to get indiana to at least do background checks at the gun shows with limited success. and we're trying to apply the standards that you disqualify yourself buying a firearm 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 are 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. and certainly that -- if they had felony convictions for doing the kind of things members of gangs and thugs do nothing in kanter says this government can't deny them

firearms or they can't deny kanter of firearms. they had to make a showing of dangerousness. nothing in the opinion opines at all on the legality of background checks and gun licensing. those are all separate issues. >> the majority says what you said is totally impractical. we'll go case-by-case and decide what kind of felonies and what kind of person and they go on to produce evidence. you know the numbers well. where the likelihood of committing a violent felony after being convicted of a felony is pretty dramatic. they are saying to us don't force us to make a case-by-case. we want to make it by category. the only practical way to deal with the thousands if not millions of people who are buying firearms. you are aware of the fact that even those who are so-called not violent felons, only felons, have a propensity to commit violent felonies in the future, are you not?

>> there was no evidence of that in the case. the arms career criminal act that's a federal statute has to make judgments categorically all the time about what counts as crimes of violence. i don't think that's beyond the can of course in any area to identify which felonies are violent and which aren't. >> i want to address that issue. let's go to page 21 of the opinion and what the court said, the majority in the court. most -- they quoted yancy. most felons are non-violent. someone with felony conviction is more likely to engage in illegal gun use. 210,000 violent offender found 1 out of 5 were reassessed for a violent crime within three years. the evidence is there. it is there for the court to consider and you ignored it. >> senator, i didn't ignore it.

as i recall, that evidence and the studies were unclear. 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 recall saying something in the opinion about the reliability of those studies because they didn't say whether someone had been convicted of a non-violent crime but had later been convicted of a violent crime as well. felonies cover a broad range of things including selling pigs out a license but now they cover a broad swath of conduct not always seems indicative of whether someone is likely to abuse a firearm. >> i'll take you back in history for a moment and note that 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 virtual military weapons that can kill hundreds of innocent people. it is a much different circumstance. maybe an originalist pins their thinking to the musket. i have to bring it to the 21st century and it has people being killed on the streets of chicago because of the proliferation of deadly firearms. let me bring it closer to home and tie up the george floyd question with where i'm headed. there is also a question as to whether the commission of a felony disqualifies you from voting in america. the history on that is pretty clear. in an article the american journal sociology voting banning when implementation of 15th amendment. it still goes on today with

voter suppression. but we know that in reconstruction in the jim crow era in black era that was used. felony conviction was used to disquality african-americans from voting in the south and many other places. the sentencing project today has found more than 6 million americans can't vote base of a felony conviction and one out of every 13 black americans have lost voting rights. the reason i raise that in your dissent you said disqualifying a person from voting because of a felony is okay. but when it comes to possession of firearms. we talk 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 are saying a felony should not disquality ricky from buying an ak-47 but using a

felony conviction to deny them the right to vote is all right? >> senator, what i said was that the constitution contemplates that states have the freedom to deprive felons of the right to vote. it is expressed in the constitutional text but i expressed no view whether it 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 second amendment right from the right to vote 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 brief described it. it was part of the dispute in heller of whether the second amendment was an individual right or a civic one that was possessed collectively for the sake of the common good. everybody was treating voting as one of the civic rights.

>> i will just tell you the conclusion of this is hard to swallow. the notion that mr. kanter after all he did should not be even slowed down on his way to buy a firearm. my goodness, it's a felony. not a violent felony he committed. to turn around and say well, when it comes to taking away a person's right to vote, that's the civic duty. it is something that we can countenance. 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. it still continues to this day. i just don't see it. 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 voting is a fundamental right. i fear you might be taking my statement in kante re, out of

context. what i said in that opinion was a descriptive statement of the state of the court's case law comparing it to felon -- stripping felons of second amendment rights. i expressed no view what the constitutional limits of that might be or whether the law should change with respect to felon voting rights. that's a contested issue in some states considering it right now. i have no view on that. it wasn't the subject of kanter. >> it wasn't the subject of the case that's for sure but in your writings you raised it. it was part of your dissent discussing the right to vote and felony conviction eliminating it. it's inescapable and you have to be prepared to answer this kind of question. i read it and thought i can't imagine that she is saying this. i'm afraid i was left with the suggestion you might. which brings me to conclusion here. we hear over and over from the other side of the aisle we don't want any activist judges.

we want judges who will go back to the original document literally 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 are a judge, you stay away from them. yet when we look at this case, the notion of what disqual files you as being a firearm -- we just mean violent felony. the word violent isn't in. there you found reference it to. it is not the only time this has happened. in citizens united, republican appointed justices struck down bipartisan campaign finance reform to unleash a flood of dark money to our political system. part of that flood is paying for the ad campaign promoting your nomination for the supreme court. i know you said you have gone radio silent in following the media. i don't blame you. i do the same thing politically but i can tell you i've seen them. beautiful, expensive ads boosting your nomination for the supreme court from

organizations we've never heard of. spending millions of dollars to make sure you get on the supreme court. citizens united opened the door for that and in shelby county conservative justices gutting the voting rights act to go to voter suppression going back to the george floyd moment. this is an example, two or three examples i've given here of activist judges rewriting the law, abolishing the law. people have to get real. as i said in our phone conversation i don't think you put the facts here and the law here and nine justices come to the same conclusion. cases are 5-4, 6-3, 7-2. unanimous. people see things differently based on their backgrounds and experience and simplistic to think it's a robotic performance with a judge on the bench. they go back and read the constitution and rule. it is not that simple and you've acknowledged it by

saying even originalists disagree with each other. >> law is hard and people approach it from different percent perktives will sometimes reach different results. it's hard to deny. every vote from the supreme court isn't unanimous and sometimes it is. cases don't get to the supreme court unless the circuits disagree among themselves. it's hard. to the extent senator durbin you are suggesting that i have some sort of agenda on felon voting rights or guns or campaign finance or anything else i can assure you and whole committee i do not. >> i didn't say. that i wouldn't say that. but i will say that you come if you are successful in this pursuit 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 issues. everyone on the court has that same background. they bring something to it that is just not generic, it is

individual. and that's the point i'm making. there is an individualism to this, the class of originalists on the supreme court aren't all going to vote the same on every case. i think merely 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. >> we'll go to senator lee and after that 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. i would encourage all my colleagues to read them. they provide great insight into judge barrett's immense qualifications. judge barrett, 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 a particular type of case. to the extent that's what any colleague has suggested, i would remind that colleague it's just wildly incorrect. it's wildly incorrect with the judicial ethics and federal law and 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

will rule in a particular case. justice ginsburg did say it well and some of this has been quoted today. i will quote it again for good measure. judges in our system are bound to decide concrete cases, not abstract issues. a judge sworn to decide impartially can offer no forecast, no hints for that would show not only disregard for the specifics of a particular case, it would display disdain for the entire judicial process. similarly because you are considering my capacity, for independent judging. my personal views on how i would vote on a publicly debated issue were i in your shoes or 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 kanter case and i'm 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 jurist who is willing to consider a pre-deprivation review for that individual. is it unusual, judge barrett, to consider someone's constitutional rights on an individual basis before having a specifically enumerateed constitutionally protected right removed? >> that would be very, very 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 analyzing is that the 14th amendment due process law guarantees that each individual due process before liberty is taken away. >> i also appreciated the thorough analysis you undertook

making clear that our rights in this area don't just date back a few decades. they don't just date back to the 60s. they don't just date back to the 1780s or the 1760s. they date back to at least the 1660s. they go way, way back. there is a lot of history that went into what became the second amendment. there are conflicts. involved not just partisan conflicts but between the king and subjects. not just between the king and subjects in the abstracts and it was protestants and catholics. but there was a lot of violence that went into that and that led to our adoption of that amendment. i appreciated your historical analysis of this, your willingness to be thorough, to make sure when someone's constitution nallly protected rights are taken into account you'll do your homework and

even if you have colleagues not willing to go there. that's what judicial leadership is. it involves a willingness to stand alone. judge barrett, one of the things that came out to me as i read your opinion in the kanter case is your commitment to originalism and textualism are real. it isn't something you make up at the last minute. it doesn't guarantee a particular result or outcome in any particular case. but it does indicate a style, a preference. tell me why text actualism and originalism are important to you. >> because i think that both statutes and the constitution are law. they derive their democratic legitimacy from the fact that they have been enacted in the case of statutes by the

people's representatives, in the case of the constitution 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 is not the law of amy but the law of the american people. originalism and textualism boil down to a commitment to the rule of law to not disturbing or changing our updating or adjusting in line with my own policy preferences what that law requires. >> is it is subjective motivation and intents of an individual lawmaker or drafter of a constitutional provision that we're looking at, or is it original public meaning? if so, what's the difference between those two. >> original public meaning. not the subjective intent of any particular drafter. so one thing i have told my students the question is not what would james madison do.

we aren't 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 legislator's mind. i respect you greatly, senator lee, what you think in your mind rather than what passes through both houses and is signed by the president is the law. not any private intentions you have. >> regardless of what -- let's say i pass bill xyz and i'm the sponsor and take it down to the floor and i say here is bill xyz and what i think about it and 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 xyz once it becomes law? >> nothing. you have to get it into the law itself if you want it to be law. legislative history is not what

goes to the process of presentment. >> regardless of how passionately and persuasively i make that point in whatever glorious speech i give in support of bill xyz, it doesn't make a darn bit of difference, does it? >> it doesn't. i assume the argument is glorious. in that respect are you functioning as an advocate when you make the glorious statement but not speaking with the voice of the lawmaker because no individual does. it is the full body that speaks. >> i want to speak next about the affordable care act. we've seen posters going up over and over and over again. we've seen them yesterday and we've seen them today and a lot of compelling stories about people whose lives have been marked by difficult things that they've endured. it involved touching and

heartwarming stories. i continue to doubt the relevance of things like that here especially insofar as they are being used to suggest that your confirmation to the supreme court of the united states has anything to do with their healthcare. tell me why you think that any individual americans' healthcare 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 is a suggestion that i have an agenda that i want to strike down people's protection for pre-existing conditions, that's just not true. i've never taken that position. and as i've also said

repeatedly any policy preferences that i have don't matter anyway, they're irrelevant. making that law, coming with the contours of the aca, that's your job. >> it is our job, it is the job of policy making branches of government it's the job of whatever combination of state and federal lawmakers and other policymakers have. a judge is not a policymaker. when congress passes a law, congress is in charge of making sure that law works insofar as it doesn't work or ends up being stricken down it is our job to replace it with something that does work, whether constitutionally or otherwise in all respects. that's our job, not yours. you made some comments a few years ago, comments with which i wholeheartedly agree. raising a criticism with chief

justice roberts and his majority's decision in the sebelius case. i won't worry to ask you to weigh in on this. you made those 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 once, but twice. and substantive ways in order to save that law from an otherwise finding of unconstitutionality. that law as written by this congress was unconstitutional in two material respects at issue in the sebelius case. unconstitutional. he effectively acknowledged that the law as written couldn't pass constitutional muster and he rewrote it 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 serverability in that case. would it be fair the say my strong opinions i've just expressed do not indicate how i would feel, how i would lean as a jurist in california versus texas. >> i think you are correct, senator lee. the question, the legal issue is entirely interest in california versus texas. serverability is its own doctrine and nothing to do with the statutory interpretation question of sebelius. >> in many circumstance necessary this country we see emotionally charged issues that boil and boil for a long time. they can't always be resolved. not everybody will 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 those areas where 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 of it is informed just 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 in 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, you have had all kinds of questions that have been put into uncertainty. you have got 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 and they know there is undue burden standard that has to be addressed. nobody is completely sure in advance what that means and so they work around it. there are discussions that arise regarding health and safety qualifications for abortion clinics. how close an abortion clinic needs to be to an accredited hospital. how it needs to be staffed or sanitation protocols. then you've got more recently some states passing laws saying

look, there is abundant medical science showing that an unborn human can feel and respond to pain as early as 10 or 12 gestational weeks but certainly by 20 weeks. so by 20 weeks we are going to 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 have to handle that differently. all of those things. the legitimacy of those laws are thrown into the federal courts yet again because those were made federal issues. now i want to be very clear. you would have the impression by watching debates in circumstances like this one and in protests outside the supreme court of the united states, you would 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. in fact, that assumes a lot of things contrary to evidence. it is not -- simply not the case that the fate of healthcare 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 that we have this debate and the fact that it has become as protracted, as personal, as ugly as it has could, i suspect, be traced to the fact we've tried to take a debatable matter beyond debate and tried to take it outside the political branches of government where people can he elect their individual

representatives and have laws respecting and reflecting the views of their respective 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's still really hard to have them reflected in 100 senators and 435 representatives. that's doable especially when those people are elected, when they stand for election every couple years. in the case of the house every six years for 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 and lose sleep over this, fundraising over this, fundraising over threets that people will lose their healthcare and threats that people will be dying in the streets because the lack of

availability of this or that medical procedure, i would ask have we created a monster? have we ourselves through our own inaction, through our own voluntary cessation of a authority to a non-political branch, have we created the very set of untenable social circumstances that are causing people to protest outside of a non-political 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's 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. the purpose of government is to

protect life. that's what it's about. if we can't agree on the fact that it's reasonable that people ought to be able to have some say, at least as 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. if we're going to leave those things in the hands of the unelected, it might be really convenient for political fundraising within congress but it is not good for the united states of america. it is not good for constitutionally limited government and not good for our individual liberties. judge barrett, alexander hamilton was appreciateient in a number of areas. he had crazy ideas and did crazy things. he was also freaking billiant.

i think he foresaw certain aspects of our lives when he described the differences between the branches of government in federalist 78. he said there 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 on the judicial branch is not will but judgment. he then went on to explain that it is really important to maintain that clear distinction between will and judgment unless you have a judicial branch consisting of people who are not elected by the people, not accountable to the people at the regular intervals and who serve basically for the rest of their lives so long as they are on good behavior. you can't have them exercising will because it's not their job. what do you think he meant?

what's the difference between will and judgment? >> i think will is 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? >> 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. i have described originalism

and text actualism. one practice that i have, one check that i put on myself to make sure i'm 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 i might feel for the particular results that i reach i try to make the sympathy run the other way to see if it will still hold and also to see -- 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? that's the test i use for myself. discipline is required but i take it very, very seriously. >> as we've had this conversation today, one of the arguments that has been made by some of my colleagues is

referred to activism. and has accused if i understood the argument correctly, some textualist originalist jurists as having engaged in activism. now, i want to be clear, i'm one who doesn't believe that there is anything worse about an activist judge than a passiveist. it's as bad to be a passiveist. to let stand, for example, 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, if fact, not unconstitutional. would you agree with me that

both of those are equally instances of bad judging? >> they are both instances, as you've 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 merit orous dispos it of motion or one who doesn't have equally done a bad thing, right? >> yes. >> does the constitution say anything about the size of the supreme court? >> the constitution does not. that's a question left open to congress. my understanding it has been nine for 150 years. that's a matter of statute, not constitutional requirement. >> it's statutory. statutory decision, one that has stood for more than a century and half.

it's a decision, nonetheless, that has some bearing. would have some bearing on constitutional issues, correct? >> insofar as there would be more decision makers on the court? >> yes, if we abandoned the longstanding historical practice and tradition of having nine justices, could that have an impact on the way the three branches of government interact with each other? >> possibly, but it is difficult for me to imagine what specific constitutional question you are asking. of course, if there were one i could opine on it. >> of course. there are strong reasons, i believe, why over the last more than is century and half we've left that number at nine. as you point out, there is nothing in the constitution that requires it. we could come up with any number we wanted. there does have to be a supreme court and such inferior courts

as we choose to create. but it 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 to leave that number at nine. the last time as far as i can tell there was any serious effort to move the number above nine was in the fall of 1936 when president franklin roosevelt got tired of the four horsemen of the apocalypse. members of the supreme court voting against his agenda. and sometimes joined by one or more other members of the supreme court. he got particularly tired of this and 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 con. fortunately, fdr's idea that he pushed in the fall of 1936 didn't make it anywhere. it didn't gain progress. it met enough opposition even with both houses of congress being overwhelmingly controlled by his political party, that it stalled quite mercifully. and it's remained, ever since then at nine justices. i think it would've been a colossal mistake. joe biden himself as a u.s. senator, as a member of this body in a proceeding of this committee in 1983 gave a rousing speech that i recommend to all, talking about that very thing. acknowledging the constitution

doesn't require but are respect for the separation of powers really ought to lead to us sticking to the number nine, don't pack the court. in recent days have seen some of the media, some in this body try to redefine what it means to pack the court, some have suggested welcome a court packing takes various forms and it can mean confirming a lot of people all at once. some have defined it so that it suggests -- the trump administration and the republican senate have been doing in the last three and half years, which is filling vacancies as they have arisen in doing so with textual list, originalist judges. if this may not be something that some like, but this is not court packing. court packing is itself manipulative. it's something that has great danger to do immense political and constitutional harm, in part because it would set up a one-way ratchet.

once you create a position, death and retirement, impeachment and removal, that position mean remains in place. if, for example, a future congress and white house were to decide to get together and to pack the court and increase the number, say 211, and let's say it's democrats who do that, and we've got joe biden now is a president or candidate who is refusing say whether he would do it. there's a reason he's not saying whether he would do it. there's only one reason why you refuse to answer the question. you are wanting to be able to do it, but you don't want to take the heat for the fact that you're thinking about doing it right now. so if they do that, where does it lead? well, it inevitably leads to the point where the next time republicans have control of both houses of congress and the white house, they would increase

it as well. you would end up increasing it incrementally, before long it looks like the senate in "star wars" where you've got hundreds of people on there. i don't know of the total number would be, but you increase it at all, you change the number at all, you do so for partisan political purposes at all, you delegitimize the court. and you can't delegitimize the court without fundamentally threatening and eroding and impairing some of our most valued liberties. you can't do that without inevitably threatening things like religious freedom, things like free speech. things that are themselves often unpopular, but are protected by the constitution precisely because they are unpopular, and yes, in that respect, the constitution is sometimes counter democratic. sometimes it can be described as undemocratic. the whole reason to have a constitution is to protect us

from the impulse of a majority that might be bent on harming the few in the name of the many. that's why the law is so important. that's why the position for which are being considered is so essential, and that's why we've got to do our job to make sure that the only people who get the job for which you've been nominated for the bill. you, judge barrett, are someone in whom i have immense confidence, immense trust, and i look forward to voting to confirming you for that very position. >> thanks, senator lee, we will take -- let's come back at 12:45. we will start with senator whitehouse. we have 15 senators left. everybody takes the 30 minutes, seven and a half hours. we will take a break for dinner tonight sometime later on and a

short break. are you doing okay? three hours that. we will come back at 12:45 and right there on scheduled for her to 9:00 but we will do whatever the committee wants. we are in recess to 12:45. >> nine fresh hours ago. that takes us through the first three hours so far today. >> bill hemmer, the team is all here as well. seven out of the 22 senators have now had their chance to question amy coney barrett. date 2 of our confirmation process, out of the gate this morning the chairman lindsey graham posed the question, what is original mean to you? she very clearly stated that it means i interpret the constitution as law. its text as text. its meaning does not change over time. she was also asked about comparisons being made to her and justice antonin scalia. she made a very important distinction that if confirmed you would not be getting

justice scalia, you would be getting just disparate, talking about the philosophy saying it's not a mechanical exercise. originalist and textual lists do not always agree. really important distinction that she made. >> my view so far as generally i think it's probably the best exchange between dennard, senator dick durbin with regard to second amendment and how you interpreted 235 years later after it was established. no notes, no pen, no briefing book. that's clearly as impressive. democrats have been somewhat of live tender. seven more democrats to go today and then another series tomorrow, but not commanding or not demanding and you wonder for a lot of the prehearing discussion whether or not they are mindful of suburban voters across america who might be looking at this mother of seven right now when you know that so many early boats are being cast, election three weeks from today.

best line senator lee, alexander hamilton was [indiscernible]. >> [laughs] that did happen, by the way. shannon bream is standing by with us. if you've been watching and tweeting out, live tweeting every minute of this hearing so far this morning. abortion, aca, election results, on aca she said "i have never taken the position to strike down attraction for pre-existing conditions." on election results, the senators really challenged her on this on multiple occasions. she says i have not had no conversation with the president about how i might roll on a case involving election results. shannon, stand up moments for you? >> that was definitely one of them, xander, when she said i've not made a deal with this committee, i will not make a deal with this president, i am an independent, that's what she said. and of course she's going to be pressed on whether or not she made any assurances. she said after the president, not to anyone on the staff about any specific case. it would be the height of hypocrisy for any nominee to go

behind closed doors and have those conversations with our nominated president and you've got to believe it does not happen. she said it didn't in this case and she has under the very watchful eye of the senators who were going to be breaking decisions about voting for her. aca came up again and again with the personal examples and photo of people who would be impacted, but she went straight at that case, one that's coming up on november 10th on the issue of separability. with talk about this a lot. it's not that the entire law is there, the merits of the ac and whether it's a good program, it's about whether that individual mandate, now congress having zeroed it out to no penalty, without with the rest of the law survive? she made it clear, she said i haven't rolled on that, haven't spoken on that publicly and are not going to focus. she stuck to the ginsburg role, no hints, no predictions, and a forecast. i'm not going to talk about a case that could come before me. you mentioned the second amendment, the back-and-forth was

senator dick durbin, also a lot of discussion about guns and gun violence with senator feinstein, who was clearly for years been a big advocate of gun control but the very first question she got on that this morning from the chairman, senator lindsey graham, who asked her if she had a gun and she said we do own a gun. we got guns, abortion, aca, all kinds of things and really we're just getting started. >> also asked about the george floyd video at one point and she -- she was very descriptive and how she and her family reacted to that. jonathan turley talking about that dick durbin exchanges well, he called that one of the most substantive moments of the entire hearing, will get to them just a moment. >> we will go around the horn and give everybody a bite of the apple, bret baier, martha maccallum, chris wallace, first to bret baiebret.>> i think that ts going pretty well for judge barrett. she is obviously a very accomplished judge, someone who knows her brief very well.

as you reference, bill, and the exteriors with senator john cornyn, she said we have all these exchange and notes, can you just hold up that pad and it was a blank pad. it doesn't say anything, it just says u.s. senate on the top. she's getting very detailed in her answers on specific cases without any notes and senator, you mentioned that george floyd moment that came from senator dick durbin's question were she talked about the emotion. she has two black children and she cried with her daughter dealing with the impact of seeing the george floyd video. listen, democrats are definitely hitting their marks on the cases but it is notable that they start out praising her family, praising her service, and it is not as contentious as we've seen in previous confirmation hearings. i just want to end with this. it's not the law of amy, it's the law of americans. i will say in our household, amy

perked up and there is a law of amy here that i adhere to. >> that law is written and well understood. >> chris wallace standing by as well. chris, your thoughts? and to brett's points about that george floyd moment where she went into detail about how her family responded to that and internalized that, this is a moment where not only she has been pressed on her judicial philosophy and how she might rule in some of these cases, but it's also moment where the country learns more about visibility. >> absolutely. i think she's come off today as an appealing, decent person. one lindsey graham bought out the fact that she had religious beliefs, strong religious beliefs, she said absolutely do but i would never think to impose them on other people. at one point she was asked about race and racism, she fed mike said she thought it was aboard

when it came to lgbtq, she said i would never discriminate against anyone else on the basis of their sexual preference. as she was describing the law, i thought i would love to be a student in our law class. i think she explained that in a very accessible way. one place where -- well, i think the article places where she might have done better. one was on those aca cases. dick durbin had that really heart wrenching picture of the two coparents on the four boys and one of them has passed away in three of them have cystic fibrosis and this comes in the context of the affordable care act and it struck me -- i think feinstein did the same thing where she had a picture of an individual who's been depending on it. it struck me that she could have expressed compassion and said look, my heart is a mother of seven goes out to those people and i fully understand how this affects their lives, real people with real problems.

but that's not my role as a judge. my role as a judge is to apply the law, your role as senators is to apply -- is to make policy. she didn't do that. she was given a couple of opportunities and she failed to do that. i also agree that i thought the exchange with dick durbin was particularly interesting and it got down into a very specific question about a person who was a felon and a majority of the court that she served on in the seventh circuit court of appeals, said we are not going to allow this person to get a gun because he's a felon. she dissented, so she lost, but she said he is not a violent felon so we should be able to get a gun, shouldn't be cut off and durbin said, welcome on the other hand, you distinguish between his right to get a gun as a nonviolent felon but not to say he should be able to vote as a nonviolent felon and i think the point he was making is, even for originalists, there's a lot

of arbitrary decisions, judgment calls that have to be made, so nothing so far has in any way endanger confirmation, but i thought there were a couple of points where she hit a couple of bottles. >> chris wallace, standby please. >> just noting there's nothing in the law that addresses thugs or felons and that's all the exchange went back and forth. john cornyn had a line, the aca versus the acv today. martha maccallum back with us in new york, what he thinks of argument >> i think that's exactly right and i thought that john cornyn's exchange with her was very interesting. i think the point is that the photos, which obviously evoke sympathy on everyone who looks at them, but the point that she was making anything obviously many entrances she cuba is a very compassionate person, especially the george floyd story and the reaction with her family. i think the point that's being made is it doesn't matter how

she feels about anyone of these situations that is separate and apart from the function of performing and she's here for essentially a job interview and she's being asked whether or not she can leave her own feelings aside when she addresses these cases, so i think that's a very important point that she has made here and i think she's made it very effectively and very clearly. these posters, as has been pointed out, do evoke sympathy. these stories are compelling. however, they are not what the court would be involved in. the court would decide whether or not the law can stand on its own without this excised part of it with the individual mandate and i thought it was a fascinating sort of notre dame law 101 class that we got inseparability, on the questions of reliance, weathered out the remaining part relies on the part that's been excised.

i thought it was fascinating -- i hope that all these zoom high school and college classes across the country have taken advantage of what we are watching here today. i think that's something that we used to see in schools across the country when these big events in american history, everything else would stop and you would tune in. they are amazing learning opportunities. i don't know how much that happens anymore because everything is seen as a political and i think that is a tremendous waste not to take advantage of what we are witnessing here today. as an experience to learn and ask questions because i do think there are a lot of americans across the country who don't look at it that way, who think that these judges are put in place to have an agenda, because they do see that they are put forth by this president or that president, but she made it very clear, there's no agreement ma made. it's insulting, clearly, to even be asked of any agreement was made with the president or with the committee, but she made that very clear that none of that transpired and she said i was absolutely not asked him of

course she should never be asked. if i were, it would have been a short conversation, she said quite clearly. i think that one other thing i would just mention in the exchange with senator john cornyn is basically he said we know that justices are independent once they're on the bench because whatever one might have thought about how john roberts might've judged the larger issue of aca, he ended up surprising a lot of people with his interpretation of that law, but that is the role as he sees it on the court. he felt that it was more important to uphold what congress had passed because that is a big burden on judges, that burden is high in terms of their interpretation of it. i think we are getting a lot of very interesting lessons and i think she has been very impressive. >> to your point about the hearings being, i think national moments, clearly millions are watching, how many melons we

cannot be certain at the moment, but these are -- this is time for a national education to get to know judge barrett better and define how democrats interact and counteract arguments. growing up, we all watched them and i can only imagine millions of doing same thing. >> lindsey graham out of the gate when his hearing began asked her to define her judicial philosophy, original some, and here was her response. >> in english. okay, so in english, that means that i interpret the constitution as a law, but i interpret the text as text and i understand it to have the meaning that it has at the time people ratified it. that meaning doesn't change over time and it's not up to me to update it or confuse my own policy views into it. >> to jonathan turley on that. you tweeted out at that moment that that was one of the strongest statements in modern history.

explain. >> that's right. there was nothing ambiguous, there was nothing that was tailored. it was a full on originalist statement. the meaning does not change over time and i can almost feel scott leah looking down with a giant grin on his face. he is very much cut from the same mold in that sense. i thought she did very well. in some ways i have a small quibble with what chris wallace said, i understand that clinically maybe she should have expressed more sympathy for the people in those posters, but she was trying to make a different legal point that she was being dispassionate. she's in this bizarre place between horns of a dilemma where she's being accused of bringing bias to the court but also asked to essentially weigh in on the policies underlying the aca and what she tried to convey

repeatedly is dispassion. that's what defines a judge. but the most interesting and substantive exchanges came with senator dick durbin on this case called cantor, and few people would expect that a figure like ricky cantor would become the focus of national debate after previously being convicted of selling fraudulent shoe inserts, but durbin was referring to him as ricky like he lived next door and saying that how could you defend his right to own -- to have a gun? and that's where we saw some very substantive responses from the judge. and it was also a curious position for democratic senator, because it was the republican nominee who was saying you shouldn't hold the fact that someone is a felon categorically against them to strip them of a constitutional right. there should be some predeprivation inquiry, some showing of dangerousness.

and then dick durbin hit back with a very effective question saying, well, but felons are barred from voting, why shouldn't they have that same deference? she was trying to make a point that probably escaped many, which is votes - they are a different part of the constitution. voting are left to the states and our differences in the states. the second amendment is an individual constitutional right and that's what she was trying to convey. very difficult in this type of hearing. >> all right, so day two, in the middle of day two of the confirmation hearings of amy coney barrett, the democrats questioning the nominee throughout the day. i think lindsey graham just said he believes this will go well into the evening, possibly until 9:00 eastern time. seven of the 22 senators have gone so far, 15 more to go. they are in a quick break, we will take a quick break. we will be right back. i've got some terrific news for veteran homeowners

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♪ >> if i were confirmed, you would be getting justice barrett, not justice scalia, so i don't think that anybody should assume that just because justice scalia decided a decision a certain way, but i would too. justice ginsburg with her characteristic nothingness, used this to describe how a nominee should report herself at hearing. no hints, in a previous no

forecasts. that has been the practice of nominees before her, but everybody calls at the ginsburg role because she stated it so concisely and it's been the practice of every nominee sense. >> from a moment a bit earlier today, justice ginsburg made that comment back in 1993, confirmed by the senate by a vote of 96-3. how far we have come. to this point, talking in the commercial, there's nothing that even compares to the kavanaugh hearing we watched two years ago. a point of note however, the kavanaugh disruption after -- came after he was approved by committee, so we're watching this back-and-forth year. 25 days since ruth bader ginsburg has passed, 21 days to the day before america elects on the president. our coverage making continues, katie pavlich, first and wavered from you, andy. been watching her twitter feed, quite active. what do you think? >> it's been a fascinating hearing, she's a terrific

witness, obviously making a good impression, but the point you just made about the election being three weeks away is something that can't be separated out of this hearing and i think it comes most to the fore when they've been talking about the obamacare case. i think part of the reason that she was, i thought, duly sympathetic but not losing sympathy with respect to some of the people whose stories were told to her, is very sympathetic people whose coverage could be affected, is she is going into this hearing with the idea that that is kind of a legal issue about separability. i was kind of surprised that she even tipped her hand on that, but twice in teeing up that case she talked about it as a strict legal matter, not about the aca so much as about this legal

principle of severability, this idea that if one part of the statute goes, do you have to invalidate the whole statutory scheme? whereas i think the democrats are looking at this as not only the amy barrett hearing, but also the 2020 campaign, which is winding to a quick conclusion three weeks from now in which the administration has sort of handed them almost on a silver platter this obamacare issue where they are in court trying to get the statute thrown out. and i think they're keeping their eye on that long game even as the question judge barrett, and a lot of that is much more, i think, bill, for public consumption than it is in terms of the questioning of barrett. >> her quote was "can parks be cut out and allow the aca to stand"? then a few minutes later she said "is that fatal to the statute? the issue is severability, i haven't talked or written at

all." >> katie pavlich is also joining us. andy mccarthy if you could standby, this was the moment where she responded to, on multiple occasions we've seen democrats pushing amy coney barrett to recuse herself from a potential presidential election case. here she is, many times she says she made no commitment to anyone, listen. >> i have had no conversation with the president or any of his staff on how i might role in that case. it would be a gross violation of judicial independence for me to make any such commitment or for me to be asked about that case and how i would rule. i also think it would be a complete violation of the independence of the judiciary for anyone to put a justice on the court as a means of obtaining a particular result, and that's why, as i was mentioning i think to senator grassley, that the questionnaire that i fill out for this committee makes clear that i have made no

precommitment to anyone about how i would decide a case. >> to you now, katie, on that moment and others that stood out to you this morning. >> yeah, she was very clear and consistent draw the morning that she is going to be loyal to the law and that she would take each case, whether it's recusal during her presidential election, or obamacare on a case-by-case basis by looking at the details and where the law is applicable and whether it's constitutional. i thought that it was interesting that democrats continued to define her as someone who would rule in favor of president trump or rule in favor of striking down obamacare in terms of the severability question, when, they don't know that, but be, she has repeatedly stated that that was something she was interested in an earlier in her opening statement she continually said that she was an originalist, a textual list and she made choices in her personal life that do not reflect anything she's ever done in her professional life and there are

a number of people who can attest to that. noah feldman, a harvard law professor who was in favor and testify for the house on behalf of impeachment of the president, who has come out in defense of her saying that she is qualified for this position, but on the policy matters, you know, on the aca thing, chris wallace mentioned the empathy issue. and she did say throughout the morning, and she said this in her writings, that when she writes an opinion, every single time she looks at it from the purview and the view of the losing party, understanding if there may be someone's child who's going to prison for some kind of sentencing or other issue. she does look at every single case with empathy and it's been interesting to watch and go to watch or be able to speak for herself as the media and democrats tried to define her as someone who rule a certain way and someone who has certain religious beliefs that impose on others in her statement about how she has lived her life, made her own choices i thought was a

powerful one and in terms of history, you know, lindsey graham, this is a moment for conservative women, and we want you to have a seat at the table. i think it's important considering many democrats to find women and issues they care about in terms of abortion. >> katie, thank you. >> by my count, shannon, 15 more senators to go, 30 minutes each if they take all the time. what are we in store for when we resume there inside the room? >> think a little bit about the contrast, because the first democrats is the ranking democrat to question judge barrett on this committee, senator dianne feinstein, who has done this a timer to and she started out by complement and judge barrett 'his family, talking about how incredibly well behaved her children were. judge barrett responding i got eyes in the back of my head, as many moms do, and there was some levity and some laughter here and she really started off treating her with what a lot of people felt like were kid gloves. if there from democrats who have been critical of senator feinstein, thinking she's not being tough enough on

a number of recent republican nominees coming from the trump white house to the federal bench. but what we are going to look at ahead is eventually the showdown that a lot of people are waiting for which is between senator kamala harris, who is very fiery and very pointed, very strong in her questioning of justice kavanaugh, and to of course is now the vice presidential nominee on the democratic ticket in that election that is just three weeks from now. there's a lot of discussion about the two of them and how their conversation may go. they are having concerns -- there have been concerns by some on the left, the whispering, wearing that senator harris may try to make too much of a moment of it and in watching judge barrett, she comes across to people regardless of whether you agree with her or not and how she interprets the law, as a humble person, very likable with her family, with the kids here, with her husband here, with people singing her praises about balancing family and life work in all those things, and because she was so pointedly questioned about her faith the last time around, she addressed that in

making this decision to come forward. she said we knew our family would be attacked, our faith would be attacked but then i ask myself the question, if i think i can service in position -- why should i say no and let some bills take on the harder assignments? she knows the tougher questioning is going to be her and i think it harasses one to watch. >> we think -- patrick from vermont has already gone and kamala harris be the second one that will go virtual, right? >> i think so because it looks like everybody is here other than those senators in person. you had senators lee and tell us who were after testing positive for covid, lee was yesterday, ted cruz was out yesterday remotely because he had set reaction with senator lee. he's now cleared his quarantine and he's back. to get up and leave a little bit, sometime take restroom breaks, so they are not always here but my understanding is that the next remote would be senator harris. >> and in a way she's making a statement doing that. thank you shannon, we will be

back with you shortly here. time for another time perhaps? >> fox team coverage will continue, they are on a lunch break and we got ken starr on the other side. we will be right back. and through pandemics, and depressions, wars that split a nation, and fractured the world. americans have always found a way to vote and make their voices heard. so stand with the national council on election integrity and help make sure every vote is counted. no matter who you vote for, or how. because while this election may feel different, we all call america home. i will send out an army to find you in the middle of the darkest night it's true, i will rescue you oh, i will rescue you

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and for helping me get my money right. ♪ joe biden was raised with middle class values. joe doesn't need to be the center of attention. or see himself on tv. he has always focused on getting the job done. joe led us out of the 2008 recession, and increased health coverage for millions. as president, joe will focus on getting us out of our crises. he'll listen to experts, work across the aisle. and put the american people first. ff pac is responsible for the content of this ad. >> the senate judiciary hearing on capitol hill for amy coney barrett is still in a quick recess, possibly a late morning/lunch break, we don't know. >> it's going to be a late night. >> it's going to be going well into the evening hours as each senator, 22 senators in total will get 30 minutes to question

nominee. sheldon whitehouse, ted cruz and amy klobuchar coming up and kamala harris and others will be later in evening. ken starr, former independent counsel on fox news contributor. good afternoon at this point to you, your thoughts as you've been watching this hearing along with us this morning? >> yes indeed. judge barrett is coming off i think very well. her motto seems to be "keep calm and carry on." she shows she is very about the law, but she is not going to be drawn in to the predictive judgment, how will you roll? i would also say the chairman lindsey graham deserves a blue ribbon or gold medal or both on his opening today, absolutely brilliant in terms of saying here's our response on the policy question. it's not a legal or constitutional question. here's what's wrong with obamacare, here's what we want to do as republicans, i thought it was a tremendous policy

statement, extemporaneous. finally, he took the country through what i thought was just a very beautiful lesson in welcome to constitutional law. what is that the supreme court does? and the nation needs to hear this since the debate comes down so frequently. do you like roe v. wade? well, i guess i do, ohio don't understand, et cetera. i thought that was a normally helpful for the judiciary chairman to say here's constitutional law for all of us. >> on roe v. wade, she was asked specifically if it was wrongly decided. just looking through the actual -- her actual words here. i have a view, whether i love or hate it, to suggest it may tilt one way or another. one reason why it may be comforting to you to have to answer is also why i can't recommit to approaching a case in any particular way. what's your response to that? >> she is so right.

she cannot recommit. that is a violation, and she said this, of her oath. she is duty-bound under her oath to deal with -- do what judges do when they're being good, honest judges, and that is to be open-minded, to listen to the arguments, and also to talk to her colleagues. she's not a district judge sitting alone. she is with this group of mines. she's got eight colleagues and she needs to allow the process, and that's what she was saying. she made the process point, allow the process to operate, as it should, with integrity. a perfect kind of position to take and it's grounded in history. this is what certainly in modern times, this is what nominees are supposed to do, not stake out a position. >> one more quick question on that, talking about the exchange with dick durbin from illinois and the senator was pressing her because she obviously refuses to

involve any of her opinions and telling senators how she would possibly roll on a case, rightly so, but he said we all come from different walks of life, we all have different backgrounds. how can you say he challenged her, that that won't play a part in your decision process and how you rule at the supreme court justice? what did you think of that moment? >> i thought this was a fair point, we get to have insights here, i call it judicial philosophy. that's what she was responding to. here is the way, and she talked about a regionalism, and chairman graham said break this down, speak in english and so forth, and i think she was as responsive as she appropriately could be. but the senators always want to press, you do come from a background in that background shapes your worldview. her response is my job as a

judge is not to impose my judge on the rest of the world. if you're imposing your worldview, whether it's a catholic perspective or a conservative republican perspective, that that's what you're doing as a judge, then you're in the wrong business, and i think that's what she was saying over and over again tod today. >> standby there. the vice president, former vice president joe biden is in florida this afternoon and the president, donald trump, is in pennsylvania later tonight, to give bret and martha and chris a shot, packing the court, this has been on the trail over and over because frankly joe biden did not give a clear errors, neither did kamala harris. this was in cincinnati and here after a reporter pressed him on the question, what's his answer? >> court packing is going on now. never before when an election

has started and a million votes of already been cast, as it ever been that a supreme court nominee was put forward? i'm not a fan of court packing but i don't want to get off on that whole issue. i want to keep focus. the president would love nothing better than to fight about whether or not i would in fact pack the court or not pack the court, et cetera. focus is why is he doing what he's doing now? that's the court packing the public should be focused on. >> the question was not answered with a "yes" or "no," he said i'm not a fan. show that fdr in his opinion made a wrong move. i think bonehead was the answer he gave there. are you able to get a sense as to how these hearings might be playing in suburbs across america as millions are washing this -- watching this unfold document >> first of all on the issue of court packing, i don't think there are a ton of voters out there who are undecided were going to make their decision based on joe biden's answer on court packing but the fact that he's been so elusive about

answering the question, it is a legitimate question to point out. it is a proposal as you see judge amy coney barrett walked back into the courtroom, it was a proposal by progressives and they still talk about it. so a potential president, if he was to win what factor in, so it's a legitimate question to ask. he's hedged it, he's given many speeches back in '83, '86, '87 how he would be against it but i'm not sure it's the issue that decides this whole thing. >> thank you, chairman. judge barrett, you can take a bit of a breather on your return to the committee, because what i want to do is go through with the people who are watching this now, the conversation that you and i had when we spoke on the

telephone. you were kind enough to hear out a presentation that i made and i intend to ask some questions in that area, but it doesn't make sense to ask questions for the predicate, particularly for viewers who are watching this. i guess the reason that i want to do this is because people who are watching this need to understand that this small hearing room and the little tv box that you're looking at, the little screen that you're looking at are a little bit like the frame of a puppet theater and if you only look at what's going on in the puppet theater, you're not going to understand the whole story. you're not going to understand

the real dynamic of what is going on here. and you're certainly not going to understand forces outside of this worm or pulling strings and pushing sticks and causing the puppet theater to react, so first, let me say, why do i think outside forces are here pulling strings? part of it is behavior. we have colleagues here who supported you, this nominee, before there was a nominee. that's a little unusual. we have the political ram job that we have already complained of, driving this process through at breakneck speed in the middle of a pandemic while the senate is closed for safety reasons and while we are doing nothing about the covid epidemic around us.

we have some very awkward 180s from colleagues, mr. chairman, you figure in this. our leader said back when it was garland versus gorsuch that of course, of course the american people should have a say in the court's direction. of course, of course, said mitch mcconnell. that's long gone. senator grassley said the american people shouldn't be denied a voice. that's long gone. senator cruz said you don't do this in an election year. that's long gone. and my chairman made his famous hold the tape promise, if an opening comes in the last year of president trump's term, we will wait until the next election. that's gone too.

there was a lot of hard to explain hypocrisy and rush taking place right now in my experience around politics is that when you find hypocrisy in the daylight, look for power in the shadows. what does all this matter? this is a political parlor game, it's no big deal. well, there are some pretty high-stakes here that we've been talking about on our side and i will tell you three of them right here. roe vs. wade, o berger fell, and the obamacare cases. here's the g.o.p. platform, the republican platform, the platform my colleagues on the other side of this i'll say in a republican president will appoint judges who will reverse roe, obergefell, and the

obamacare cases, so if you have a family member with an interest in some autonomy over their body on the roe vs. wade, the ability to have a marriage, have friends mary, have a nice or a daughter or a son mary someone of their same sex, you've got a steak and if you're one of the millions of americans who depend on the affordable care act, you've got a stake. it's not just the platform, let's start by talking with the affordable care act. he was the president talking about this litigation that we are gearing up this nominee for for november 10th. in this litigation he said we want to terminate health care under obamacare. that is the president's statement. so when we react to that, don't act as if we are making this stuff up. this is what president trump

said. this is what your party platform says. reverse the obamacare cases. senator after senator, including many in this committee, filed briefs saying that the affordable care act should be thrown out by courts. why is it surprising for us to be concerned that you want this nominee to do what you want nominees to do? one quick stop on [indiscernible] because a lot of this has to do with money, this is an interesting comparison. natural federation of businesses, until it filed the case had its biggest donation ever of $21,000. in the year that it went to work on the affordable care act, ten wealthy donors gave $10 million. somebody deserves a thank you.

so let's go to roe v. wade. same thing. same thing. the president has said that reversing roe v. wade will happen automatically because he's putting pro-life justices on the court. why would we not take him at his word? the republican party platform says it will reverse roe. why would we not comment on that and take you at your word? senators here, including senator hawley, says i will vote only for nominees who acknowledged that roe v. wade is wrongly decided, and their pledge to vote for this nominee. do the math. that's a really simple equation to run. the republican brief in june medical said row should be overruled. so don't act surprised when we asked questions about whether that's what you're up to your.

and finally, out in the ad world that you have spared yourself, wisely, judge barrett, the susan b. anthony foundation is running advertisements right now saying that you are set, you are set to give our pro-life country the court that it deserves. there is the ad with the voice-over. she said -- she said. and then roe, obamacare cases and obergefell, gay marriage. the group that opposes same-sex marriage says in this proceeding all her issues are at stake. republican platform says it wants to reverse obergefell in the republican brief filed in the case said same-sex relationships don't fall within any constitutional protection.

so, when we say the stakes are high on this, it's because you've said the stakes are high on this. you have said that's what you want to do. so how are people going about doing it? what is the scheme here? let me start with this one. in all cases, there is big anonymous money behind various lanes of activity? one lane of activity is through the conduit of the federal society. it's managed by guy -- was managed by a guy named leonard leo and it's taken over the selection of judicial nominees. how do we know that to be the case? because trump has said so over and over again. his white house counsel said so. so we have an anonymously-funded group controlling judicial selection run by the sky leonard leo and then in another lane we have again, anonymous funders running through something called

the judicial crisis network, which is run by carrie severino, and it's doing p.r. and campaign ads for republican judicial nominees. it got 17 -- single $17 million donations, another single $17 million donation to support kavanaugh. somebody, perhaps the same person, spent $35 million to influence the makeup of the united states supreme court. tell me that's good. and then over here, you have a whole array of legal groups, also funded by dark money, which have a different role. they bring cases to the court, they don't wind their way to the court, your honor, they get shoved to the court by these legal groups, many of which asked to lose below so they can get quickly to the court to get their business down there. and then they turn up in a chorus, and orchestrated chorus

of any key. i've had a chance to have a look at this and i was in a case actually. the consumer financial protection board case and in that case there were one, two, three, four, five, six, seven, eight, nine, ten, 11 briefs filed and every single one of them was a group funded by something called donors trust. donors trust is a gigantic identity-scrubbing device for the right wing so that it says donors trust is the donor without whoever the real donors. it doesn't have a business, it doesn't have a businessman, it doesn't do anything, it's just an identity scrubber. and this group here, the bradley foundation, funded eight out of the 11 briefs. that seems weird to me you have amicus briefs coming in little flotilla's that are funded by the same groups but nominally separate in the court, so actually attach this to my brief

as an appendix. center for media and democracy saw it and they did better work. they went on to say which foundations funded the brief writers in that case. here's the bradley foundation, for 5.6 million to those groups. here is donors trust 23 million to those brief writing groups. a grand total across all the donor groups is $68 million so the groups that were filing emma amicus briefs, it's not just in the financial protection board case. you might say that was just a one off. here's the antilabor case that had a long trail through the courts, a few knocks and a few other decisions and source watch and propublica did some work about this.

here's donors trust and donors capital fund and here's the bradley foundation, and they totaled giving $45 million to the one, two, three, four, five, six, seven, eight, nine, ten, 11, 12, 13, 14, 15 groups that filed amicus briefs pretending to be different groups and both of the lawyer groups in the ca case. funded by donors trust, founded by bradley foundation and janice. this is happening over and over again and it goes beyond just the briefs. it goes beyond just the amicus presentations. "the federalist" society. remember this group that is acting as a conduit and that donald trump is said is doing his judicial selection? from donors trust, $16.7 million in the bradley foundation, $1.37 million. from the same group foundations

total, $33 million. so you can start to look at these, and you can start to tie them together. the legal groups, all the same funders over and over again, bringing the cases and providing this orchestrated, orchestrated chorus of [indiscernible]. then the same group also funds "the federalist" society over here. "the washington post" rode a big expose about this and that made leonard leo a little hot, a little bit like a burned agent, so he had to jump out and he went off to go do anonymously anonymously-funder voter suppression work. guess who jumped in to take over the selection process in this case? for judge barrett? carrie severino made the hop, so once again, ties right in together.

center for media and democracy is done -- here's a memo that they publish. reviewing a grant application asking for money for this orchestrated amicus process. what did they say in the staff recognization? it's important to orchestrate, their word, not mine, important to orchestrate high-caliber amicus efforts. before the court. they also know that bradley has done previous philanthropic investments in the actual underlying legal actions, so bradley is funding -- what to the call, philanthropic we investing in the underlying legal action and then giving money to groups to show up in the orchestrated -- that can be good. and it goes on because they also found this email.

this email comes from an individual at the bradley foundation. we asked leonard leo, who used to run the selection process, is there -- to which bradley could direct annie's support to the two supreme court amicus projects other than donors tru trust? i don't know why they wanted to avoid the reliable identity trust but for some reason they did, so leonard leo writes back on federalist society address, so don't tell me it's not federalist society business. -- guess who works for the judicial education process? carrie severino, who also helped select this nominee running the trump federalist society selection process.

so the connections abound in "the washington post" article, they point out that should the judicious crisis network office is on the same hallway in the same building of "the federalist" society and when they sent their reported to talk to somebody at the crisis network, summative from "the federalist" society came down to left them up. this, more and more, looks like it's not three schemes, but it's one scheme with the same funders selecting judges, funding campaigns for the judges and then showing up in court in these orchestrated amicus flotillas to tell the judges what to do. on the judicial crisis network you got the leonard leo connection, obviously she hopped into take over for him with "the federalist" society.

it got the campaigns that i've talked about where they take $17 million contributions -- that's a big check to write, >> no idea who that is or what they got for it, you have the break she wrote, the republican senators filed briefs in that case, signed by severino, the woman who helped choose this nominee has written briefs for republican senators attacking the aca, not an issue here, and the judicial crisis network fund, the attorney general. and it funds individuals and guess who the plaintiffs are in the affordable care act case? president trump joins them, he is and what the attorneys

general, but here is the crisis network campaigning for the supreme nominees writing brief senators against the affordable care act, supporting the republicans who are bringing this case and leading the election process for the nominee. here's where they are. mitch mcconnell and on through the list, senator collins, senator cornyn, senator hoeven, senator -- who is still here? senator marco rubio. there is a huge assortment of republican senators who was against the affordable care act, so this is to me a pretty big deal. i've never seen this around any court that i have been involved with, but there is this much

dark money and this much influence being used, here is how "the washington post" summed it up. this is a conservative activist behind the scenes campaign to remake the nation's court, and is a $250 million dark money operation. $250 million is a lot of money to spend if you are not getting anything for it. so that raises the question, what are they getting for it? well, i showed the slide earlier on the affordable care act, and on roe vs. wade. that's where they lost, and that could change, that's where the republican party platform tells us to look at how they want judges to rule, to reverse rho, and take away gay marriage, that is the objective plan, why

not take them at their word? but there is another piece, and that is not is what is ahead of us, but what is behind us. what is behind us, is now 80 cases, mr. chairman, 80 cases under chief justice roberts that have these characteristics. they were decided 5-4 by a fair majority. true two, the majority was partisan in the sense of not one democratic entity joining the five. refer to that group as a roberts five, and changes with that reference, but there has been a steady delivered 80 of these decisions in the last characteristics of them is that there is an identifiable donor interest case, and in every single case that donor interest won. it was an 80-0 5-4 partisan

route ransacking and it's important to look where those cases went, like the affordable care act, undoing roe vs. wade, and undoing same-sex marriage, they are about power, and if you look at these 80 decisions, they fall into four categories over and over and over again, one, unlimited dark money in politi politics. citizens united is the famous one, with mccutcheon, and we have it coming up now. always the 5 for unlimited money in politics. and never dark money in politics despite the fact that they said it would be transparent. and who wins when you allow unlimited dark money in politics? a very small group, once you

have unlimited money to spend and motive politics. today when matt, everybody else loses. and when you are looking at who might be behind this, let's talk about people with unlimited money to spend any motive to do it. we will see how that goes. next knock the civil jury down. whittle it down to enough, it was in the constitution. in the bill of rights, in the darn declaration of independence, but it is annoying to big corporate powers, because you can swagger your way as a big corporate power through congress, you can go and tell the president that you put into what to do, he will put your interest in the epa, it's all great until you get to the civil jury, because they have an obligation as you know, judge barrett, as you know, they have an obligation to be fair to both parties respective of their sides. you cannot bribe them, you are not allowed to.

it is a crime to temper the jury. it is a crime to tamper with congress. and they make decisions based on the law, if you are used to being the boss and swaggering your way around the political side, you don't want to be answerable before a jury, and so one after another these 85 court decisions have knocked down, whittled away at the civil jury, great american institution. third, first was unlimited dark money, second was demean and diminish the civil jury, third is weak in regulatory agencies. a lot of this money i'm convinced is polluter money, the coke industry is a polluter. the fossil fuel industry is a polluter. who else will be the putting buckets of money into this and hiding who they are behind donor's trust other schemes?

and -- if you are a big polluter, what do you want? you want weak regulatory agencies. you want ones that you can box up and run over to congress and get your friends to fix things for you and congress. over and over and over again targeted at agencies to weaken their independence and weaken their strength. and if you are polluter and weak agency, it is your idea of a good day. and the last in politics, in voting. why on earth the court made the decision, a factual decision not something a power court is supposed to make, as i understand it, judge barrett, the factual decision that nobody needed to worry about minority voters in states being discriminated against or that legislators would try to knock-back their ability to vote. these five make that finding in

shelby county against bipartisan legislation from both houses of congress hugely passed on no factual record, they just decided that that was again a problem to look over. a no record with no basis, because it got them the result that we then saw. what followed? state after state after state passed suppression laws. one targeting african-americans that two courts said it was surgically, surgically tailored to get after minority voters. and gerrymandering, the other great control, both gerrymandering where you go to a state to like the red map project dated in ohio and pennsylvania, and you pack democrat so tightly into a few districts that all of the others have the republican majority districts, and in those states you send a delegation congress that has a huge majority of republican members, like 13-5 if

i recall in a state where the 5, the party of the 5 actually won the popular vote. you have sent a delegation to congress that is out of step with the popular vote in that state, and court after court figured out how to solve that, in the supreme court said nope, we will not take an interest in that question. and all of these areas where it is about political power or big special interests, and people want to fund their campaigns. and people want to get their way through politics without actually showing up, doing it behind donors trust and other groups, doing it between the schemes, over and over and over again we see the same thing. 80 decisions, judge barrett. 80 decisions. an 80-0 sweep. i don't think that you have tried cases, but some cases, the

issue is bias and discrimination. if you are making a bias case as a trial lawyer, lindsey graham is held as a trial lawyer, if you want to make up buys the look back case, if they want to make a bias case, and that they could show 80-0 pattern, eight, that is admissible, and b, i would love to make that argument to the jury, i would be really a bunch of flukes. all 5-4, bipartisan, all this way. so something is not right around the court. and dark money has a lot to do with it. special interests have a lot to do with it. donors trust and whoever is hiding behind donors trust has a lot to do with it. and the bradley foundation orchestrating its situation in the court has a lot to do with it.

so i think you, judge barrett, for listening to me now a second time. and i think this gives you a chance for you and i to t up an interesting conversation tomorrow. and i think my colleagues for hearing me out. >> thank you, senator whitehou senator whitehouse. >> chairman, can i put three letters in? thank you. >> thank you, mr. chairman, judge barrett, welcome. congratulations on being nominated. congratulations on enduring the confirmation proceedings. and i think that it is a particularly good thing we have made it through what i guess you would call the top of the lineup of the questioning, and some of the smartest and frankly most effective questioners on the democratic side, and i think that it speaks volumes that collectively they have had very few questions for you.

and virtually none calling into question your credentials are impeccable. your record, and what i think has been an extraordinary life you have led. so that should be the source of great satisfaction in terms of the scholarly record, judicial record u.s. spent a lifetime building. i want to start by asking you a question. why is the first amendment's protection of religious liberty, why is that important? >> well, i think that it is broadly viewed that the framers protected and write a fires protected the free exercise of religion, because, you know, for reasons that we all know from history of persecuted religious

minorities fleeing to the united states that in enshrining that protection, it was one of the bill of rights because it was considered so fundamental. >> and why does that matter to americans? what difference does that make in anybody's life? >> i think that all of the bill of rights, each and every one of them is important to americans, because we value the constitution. including religious liberty. >> how about the free-speech protections of the first amendment? why are those important? >> so that minority viewpoints can't be squashed. so that it is not just the majority that can speak to popular views. you don't really need the first amendment if what you're saying is something that everybody wants to hear. you need it when people are trying to science flint and you. speak on how about the second amendment? why is bearing arms important? >> we talked about heller earlier this morning, and what heller tells us is that the second amendment text and image

individuals right to bear arms for protection. >> i agree with you that the entire bill of rights is incredibly important to americans. i also think that what is really striking here today and also yesterday is that senate democrats are not defending what i think it's a radical agenda that they have when it comes to the bill of rights. and the topics they are discussing today have little bearing to the rights that are really at issue and in jeopardy of the supreme court. and so let's take a few minutes to go through them. first of all, we have had some discussion of roe vs. wade. you have declined to give an opinion on a matter that might be pending before the court, that is of course the same

answer that every sitting justice has given when he or she was sitting in the same chair you are. it is mandated by the judicial candidates of ethics, whether one is a nominee of a democratic president or republican not president, that has been the answer given to this committee for decades. but i do think it is interesting that our democratic colleagues number one, don't discuss what would actually happen if there came a day where roe vs. wade was overruled, which is namely that it would not suddenly become a case that abortion was illegal, but rather it would revert to the status of the law as it has been for nearly 200 years of our nation's history, which is that the question of the permissibility of abortion is a question for elected legislators at the state levels and the federal level. and it is difficult to dispute that there are great many of

those issues including jurisdictions like california and new york who even if roe vs. wade were no longer the law of the land, their elected legislatures would almost certainly continue unrestricted access to abortion with virtually no limitations. what i find interesting though is that our democratic colleagues do not discuss what is really the radical position of the most liberal justices on the supreme court, which is that no restrictions whatsoever are permissible when it comes to abortion. yesterday one of the democratic senators made reference to the case gonzales versus carhart. i am quite familiar with that case, and i represented texas and a number of other states in that case. it concerned the

constitutionality of the federal ban on partial birth abortion. it was legislation in the past congress was signed into law that made the really gruesome practice of partial-birth abortion accessible. an overwhelming of majority is believed that partial-birth abortion should be prohibited, even those that identify as pro-choice. a significant amount of americans don't want to see that gruesome practice allowed. supreme court by a vote of 5-4 in carhart versus gonzales upheld the ban on partial birth abortion. that means they were four ready to strike it down. ready to conclude that you can to ban abortion. that you can't ban late-term abortion. and by with the way, other restrictions that are in question include parental consent to laws, parental notification laws, none of our democratic colleagues want to talk about the justices they want to see on the court would

strike down every single reasonable restriction on unlimited abortion, and the vast majority of americans. how about free speech? well, we have heard quite a bit about free speech. to the senator from rhode island just gave a long presentation, complete with lots of charts. i will say a couple of things on free-speech. first of all, our democratic colleagues when they address the issue of so-called dark money and campaign finance contributions are often deeply, deeply hypocritical. and don't address the actual facts that exist, here are some facts, of the top 20 organization spending money for political speech in the year of 2016, 14 of them gave virtually

all of their money to democrats. in another three split their money evenly, so only the top three gave their money to republicans, what does that mean in practice? that meant the top 20 super pac donors contributed $422 million to democrats and 189 million to republicans. those who give these impassioned speeches against dark money don't mention that their side is funded by dark money with a massive differential. the senator from rhode island talked about big corporate powers without acknowledging that the contributions from the fortune 500 in this presidential election overwhelmingly favored joe biden and the democrats. without acknowledging that the contributions from wall street in this election overwhelmingly favored joe biden and the democrats. it's an awful lot of rhetoric about power, but it gets even more interesting when you look

at supreme court nominations. we just heard an attack on "the federalist" society, a group that i've been a member of for over 25 years. i joined as a law student. a group that brings conservatives, libertarians, constant dilution constitutionalist together to discuss the law. what is interesting is nowhere in the senator of rhode island's remarks was any reference to a company called arabella advisors. which is a for-profit entity that manages nonprofits including the 1630 fund in the new venture fund. what on earth all of those? they sound dark and confusing names, well, according to "the wall street journal" this sunday in the year 2017 and 2018, those entities reported $987.5 million in revenue. that's nearly a billion dollars.

we heard a lot of thundering indignation at what was described as $250 million of expenditures, and in this case you have a billion dollars, the senator of rhode island said with that much money, much of which is dark money that we don't know who contributed, he asked, what are they getting for it? and by the way, one of the things they are getting for it is the group called demand to justice. a project of those entities, spent $5 million opposing justice brett kavanaugh who has just launched a seven-figure add by opposing your confirmation. so all of the great umbrage about the corporate interest that are spending dark money is wildly in conflict with the

actual facts of the corporate interests that are spending dark money are funding the democrats. by a factor of 3-1 or greater. effect that doesn't ever seem to be acknowledged. but not only that, what with citizens united about? it is interesting, most people at home have heard about citizens united. and they know that it makes democrats very, very upset. but they don't know what the case is about. citizens united concerned whether or not it was legal to make a movie criticizing a politician. specifically citizens united is a small nonprofit organization based here in d.c. that made a movie that was critical of hillary clinton. in the obama justice department took the position that it could fine, it could punish citizens united for daring to make a movie critical of a politician. the case went all the way to the

u.s. supreme court with the oral argument that there was a moment that was truly chilling, justice sam alito asked the obama justice department is it your position on your theory of the case that the federal government can ban books? in the obama justice department responded yes. yes, it is our position that if the book criticizes a political candidate, a politician, the federal government can ban books. as far as i'm concerned, that is a terrifying view of the first amendment. citizens united was decided 5-4 by a narrow 5-4 majority, and said that the federal government cannot punish you for making a movie critical of a politician.

and likewise, that the federal government could not ban books. four justices dissented, four justices were willing to say that the federal government can ban books and movies and presumably could ban books as well. when hillary clinton was running for president, she explicitly promised every justice she nominated in the court would pledge to overturn citizens united. by the way, hillary clinton said that she would demand of her nominee is something you have rightly said that this administration has not demanded of you, which is a commitment on any case as to how you would vote, democrats have shown no compunction in expecting their nominee is to make a promise, here is i'm going to vote on a pending case, judicial ethics be damned. or how about the second amendment.

we have heard some reference to the heller decision. senator from connecticut yesterday talked about reasonable gun control and gun safety provisions. that of course was not what was at stake in the heller decision. number one trend majority decision justice to's opinion, acknowledges reasonable provisions, things like prohibitions on felons and possessions are permissible. your opinion in the decision likewise acknowledge that restrictions from -- are entirely permissible under the second amendment. but the issue of heller was much more fundamental. it was whether it protects an individual's right to bear arms at all. the vote in heller was 5-4. by a vote of 5-4, the majority

struck down the district of columbia's total prohibitions on owning an operative firearm in the district of columbia. the argument of the four dissenters was not what are colleagues talk about here. it was not some reasonable gun control provisions are okay. that was not the argument of dissenters. that question we can actually have a reasonable debate. reasonable minds can differ on what the appropriate line should be. but that was not what was at issue with heller. the position of the four dissenters was the second amendment protects no individual right to keep and bear arms whatsoever, but merely a "collective right of the militia." which is fancy lawyer talk for a nonexistent right. four justices would have ruled that way. one vote away. the consequences of the court concluding that there is no

individual rights on the first amendment would mean you and i and every american watching this would lose your second amendment rights. it would mean that the federal government, the state government, the city could ban guns entirely. could make it a criminal offense for anyone of us to own a firearm. and no individual american would have any cognizable right to challenge that. that is a radical reading of the constitution. that is effectively erasing the second amendment from the bill of rights. in hillary clinton likewise promised in 2016 that every justice she nominated would commit to voting to overturn heller. they were big on litmus tests. and joe biden, even though he refuses to answer just about anything about whether or not he is going to pack the court, he did tell the american people that the voters don't deserve to know whether he is going to pack

the court. truly a statement of disrespect and contempt for the voters, unusual in our political process. one vote away from the second amendment being erased from the bill of rights. not of our democratic colleagues admit, but that is their agenda. and those are the justices that democratic president to limit presidential nominees are saying they will appoint. justices who will take away your right to criticize politics, justices who will allow censorship, justices who allow books and movies to be banned, justices who erase the second amendment from the bill of rights, and how about religious liberty? religious liberty is an issue near and dear to a great many of

us. the right of every american to live according to your faith and conscience, whatever that faith may be, religious liberty is fundamentally about diversity. it is about respecting diversity that whatever your faith tradition might be, the government is not going to trample on it. religious liberty cases over and over, the case that i litigated dealt with the ten commandments monument that stands on the state capitol grounds. it has been there since 1961 in texas. an individual plane, an atheist, a homeless man filed a lawsuit trying to take down the ten commandments and it went all the way to the supreme court. it was decided 5-4. four justices were willing to stay in effect, send in the bulldozers and tear down that monument, because he cannot gaze on the image of the ten commandments on public land. another case in the mojave

desert veterans memorial, this is a memorial erected to the men and women who gave their lives in world war i. a white latin cross, simple and bear in the middle of the desert. i have been there on sunrise rock where it stands. the aclu filed a lawsuit saying you cannot gaze on the image on public land, and the aclu won in the district court. the federal courts ordered that veterans memorial to be covered up with a burlap sack with a chain on the bottom, and apply a wood box. when the case went to the supreme court, i represented 3 million veterans pro bono for free defending that veterans memorial. >> we won 5-4, and there were four justices prepared to say tear down the veterans memorial,

and under the reasoning that they put forth, they were not far away from saying bring out the chisels and remove the crosses and the stars of david on the tombstones of the men and women that gave their lives in arlington cemetery defending this nation. that is a radical view, and we are one vote away. that is utterly contrary to the text of the first amendment, to the understanding of the first amendment. when we argue the ten commandments case in the supreme court, there was more than a little bit of irony. you know how many times the image of the ten commandments appears in the courtroom of the supreme court? the answer to that is 43. there are two images of the

ten commandments carved on the wooden doors as he walked out of the courtroom, he would soon be sitting looking at them. therefore the images of the ten commandments on the bronze gates on both sides of the courtroom. and then judge barrett, when you are sitting at the bench above your left shoulder will be a phrase you know well, a free is carved into the great lawgivers, one of whom is moses, he is standing there holding the ten commandments. the text of which is legible in hebrew as he looks down on the justices. and four justices are willing to stay in effect, bring out the sandblaster's, because we must remove god from public square. that is a profound threat to our religious liberty, and i would note that it is not just extend to public knowledge is. it also extends to religious liberty. the little sisters of the poor,

our catholic convent of nuns who take oath of poverty who devote their lives to caring for the sick, caring for the needy, caring for the elderly. the obama administration litigated against the little sisters of the poor seeking to find them in order to force them to pay for abortion inducing drugs among others. it's truly a stunning situation when you have the federal government to litigating against nuns. the supreme court decided the hobby lobby case, another case routinely denounced by senate democrats, the hobby lobby case concluded that the federal government could not permissibly force a christian business to violate their faith. it reflects the religious liberty traditions that you can live according to your faith without the government trampling on it. you know what this body did, i'm

sorry to say? senate democrats introduced legislation to cut the religious freedom act. that past with over overwhelming bipartisan majority. senate democrats including chuck schumer and joe biden, all voting for the religious restoration act. president bill clinton signed the religious freedom restoration act. and in the wake of the hobby lobby decision, they voted to got to the protections for religious liberty, and i am sorry to say that every senate democrat voted to do so. not a single one, zero would defend religious liberty. joe biden has already pledged if he is elected, he plans to initiate again the attack on the little sisters of the poor. now it is interesting, folks in the press like to talk about

pope francis. and on some issues pope francis has been vocal when it comes to the environment, when it comes to issues concerning immigration, the pope has been vocal on issues that are democratic colleagues like and agree with. the press is happy to amplify those views pretty somehow missing from the amplification's acknowledgment that when the pope came to the united states in washington he went and visited the little sisters of the poor. here in d.c. he went to their home here in d.c. and the vatican explained that he did so because he wanted to highlight their cause. that the federal government should not be persecuting nuns for living according to their faith. that's what is at stake in these nominations. and you won't hear any of that from the senate democrats on this committee, that's why their base is so angry at your

nomination, judge barrett, because they do not believe that you are going to join the radical efforts to erase those fundamental rights from the bill of rights. i believe that issue preserving the constitution, preserving the bill of rights, the fundamental liberties, i believe is the most important issue facing the country in the november elections. and i think for those of us who value those rights, we should take solace in the fact that not a single democrat is willing even to acknowledge the radical sweep of their agenda, much less defend it. they know it is wildly unpopular, and look, right at the heart of this is a decision many democrats have made to abandon democracy. you see, most policies, policies

like obamacare, policies like health care, most policies under the constitutional system were meant to be decided by democratically elected legislators. why? so they can be accountable to people. so the voters disagree, they can throw the bums out. but too many democrats have decided today that democracy is too complicated. it is too hard to actually convince your fellow americans of the merits of your position. it is much easier just to give it to the courts, finding five lawyers in the black robes and let them decree the policy outcome that you want, which makes your radical base happy, presumably makes the millions, if not billions in dark money being spent for democrats happy without having to justify it to the american people. judge barrett, i'm not going to ask you to respond to any of

that. but i do want to shift to a different topic. which is a bit more about you personally, your background. judge barrett, do you speak any foreign-language is? >> once upon a time i could speak french, but i have fallen woefully out of practice, so please don't ask me to do that right now. >> you can be assured of that, because i had two years of high school french, and i suspect yours remains much better than mine. how about music? do you play any instruments? >> the piano. >> how long have you play the piano? >> i played the piano growing up or ten years. and now most of my piano playing consists of playing my children songs for them and supervising their own piano practice. i look forward one day when i have more time to be able to choose some of my own music. >> do the kids do piano lessons

as well? speak of the kids do piano lessons, some of the older ones who are in high school have gotten so busy with sports and those things that they have stopped, but the younger children do. >> our girls are nine and 12 and they both do piano lessons and i will say in our household it is less than voluntary. >> [laughs] >> one of the things heidi and i have found particularly the last six months during covid emma which has been an extraordinary crisis, is just with two kids at home that doing distance learning when schools were shut down was really hard for us with two children, for you and your husband, you have seven kids, how did you all managed through the lockdowns and distance learning? what was that like in the household? >> it was a challenging time as it was for every american, our oldest daughter emma who is in college moved home at that point, because she is at notre dame. it is closed. so emma could manage her own

e-learning and our high school children could as well, but jesse and i try to divide and conquer the approach for the younger four, and it was quite challenging, i assure you. >> one part of your story that i find particularly remarkable, and that i admire is the decision you made to adopt two children. you and your husband had five biological children, and you adopted two more. both of your adopted children are from haiti. haiti is a country that has some of the most crushing poverty in the world. my brother-in-law is a missionary in haiti, and actually heidi and the girls just got back from haiti a couple of weeks ago. i was curious if you would share with this committee and with the american people what led you and your husband to make the decision to adopt?

it is one of the most loving and compassionate decisions any family can make. >> when jessie and i were engaged, we met another couple who had adopted, in the sense it was a couple who adopted a child with special needs, and we also met another couple who adopted a few children internationally, and we decided at that point while we were engaged that at some point in the future, we wanted to do that ourselves. and i guess that we had imagined initially that we would have what ever biological kids that we had decided to have, and adopt at the end, but after we had our first daughter emma, we thought, why wait? so i was expecting tests when we went and got vivian. so she and tests, we call them are fraternal twins, they are the same grade. and it has enriched our family immeasurably. and once we had adopted a vivian at that point, then we made that

decision that we definitely wanted to adopt again. several years later john peter entered our family. >> so your children have been wonderfully well behaved. i think that you are an amazing role model for little girls, what advice would you give little girls? >> well, what i am saying is not designed -- my brother now has left, i was thinking of what my father said before the spelling bee, anything boys can do, girls can do better. so since my sons are also behind me, i will say that boys are great too. >> thank you. >> thank you very much, mr. chair, welcome again, judge. since i have the draw to always follow senator cruz, i did want to make one thing clear after listening to that for a half-hour, that joe biden is catholic and he is a man of faith. and then i want to turn to something else, and that is that we need a recess in my mind for

the people at home. a bit of a reality check that this is not normal right now. we have to understand that what people are dealing with 7.7 million people have gotten this virus. and 214,000 americans have died, and for people watching at home and wondering what we are all doing in this room right now, and may be at home because you lost your job or maybe you got your kids crawling all over your couch right now, maybe you are trying to teach your first grader how to do a mute button to go to school or maybe you have a small business that you had to close down or that is struggling, we should be doing something else right now. we should not be doing this. we should be passing coronavirus relief like the house just did, which was a significant bill that would've been a big help. and i think that people have to know that right now. whether you're a democrat,

independent, or republican, and that's why it started out yesterday by telling people that they need to vote. number two, some of my colleagues throughout this hearing on the other side have been kind of portraying the job that the judge is before us on as being some kind of ivory tower exercise. i think that one of my friends called it, related that you would be dealing with the dormant congress because. i'm sure that might be true, but we also know that this is the highest court in the land. that the decisions of this court have a real impact on people. and i appreciate judge, that you said you did not want to be a queen. i would not mind being the queen around here, truth be known. i would not mind doing it. a benevolent queen of making decisions so that we can get things done. but you said that you would not let your views influence you and the like, but the truth is the

supreme court rulings rule people's lives. they decide if people can get married. they decide what schools they can go to. they decide if they can even have access to contraception. all of these things matter. so i want to make that clear. and to the third reset here that i think we need to have is that this hearing is not normal. it is a sham. it is a rush to put in a justice. the last time that we had a vacancy so close to an election was when abraham lincoln was president. and he made the wise decision to wait until after the election. the last time we lost a justice so close to an election. that's what he did. today we are 21 days from the election. people are voting. millions of people have already cast their ballots. and i go to the words of

senator mcconnell, the last time we had a situation, he said the american people should have a voice in the selection of their next supreme court justice, therefore this bank and see you should not be filled until we have a new president. that set the precedent that so many of you have embraced. or at least you did a few years ago, which is that in an election year, the people choose the president, and then the president nominates the justice. so why is this happening? well, that is a good question. this guy, our president. he is the one who decided to pop a supreme court nomination in the middle of an election, when people's health care is on the line with the case before the court on november 10th. so let's see what he said about the supreme court. well, one of president trump's campaign promises in 2015 was

that his judicial appointment at will do the right thing on obamacare. you can see it right here. and in fact, judge, just one day after you are nominated, this is a few weeks ago, he said also on twitter that it would be big win if the supreme court strikes down the healthful. so judge, my first question, do you think that we should take the president at his word when he says his nominee will do the right thing and overturn the affordable care act? >> senator klobuchar, i can't really speak to what the president had said on twitter. he has not said any of that to me. what i can tell you, as i have told your colleagues earlier today, is that no one has elicited any commitment in the case or brought up that commitment in the case.

i am 100% committed to judicial independence from political pressure. so whatever people's party platforms may be or a campaign promises may be, the reason why judges have life tenure is to insulate them from those pressures. so i take my oath seriously to follow the law. and i am not pretty committed on what i precommit to decide a case any particular way. >> i think that the life tenure, the idea that you have just for everyone out there a job for life makes this even more important for us to consider where you might to be. and i know that you have not said how you would rule on this case that is coming up right after the election, where the president had said it would be a big win if the supreme court strikes down the law, but you have directly criticized justice roberts in an article in my own state, and one of the minnesota law school journals. it was in 2017. it was the same year you became

a judge. and when roberts writes the opinion to uphold the affordable care act, you said he "push the affordable care act beyond its plausible meaning to save the statute." is that correct? >> senator klobuchar, i want to clarify, is this the constitutional commentary publication that you and i discussed? >> yes, it is, but it is still -- >> okay. i just wanted to be sure. >> again, did you ask that question? did you say that? that he pushed the affordable care act beyond the plausible meaning to save the statute? >> one thing i want to clarify is you say that i criticized chief justice roberts, and i don't attack people. it just ideas. so it was designed to make a comment about his reasoning in that case, which as i have said before is consistent with the majority opinion characterizes it as a left plausible reading of the statute.

>> so you did not agree with his reasoning in the case that upheld the affordable care act? >> what i said and -- >> that was sib versus civilians. i will get to king in a moment. >> what i said with sib versus civilians. which was that the interpretation that the majority of assets construing the mandates to be attacked it rather than a penalty was not the most natural reading of the statute. >> is still the reading that justice roberts got to. you also criticized as he pointed out by bringing up king v burwell, this was in a 2015 national public radio interview, and you acknowledge that people being able to keep their subsidy under the affordable care act was -- and it would help millions of americans. yet you praise to the dissent by justice scalia saying the

dissent had "the better of the legal argument," is that correct? >> i did say that, yes. >> would you have ruled the same way and voted with justice scalia? >> well, senator klobuchar, one of the plus sides or the upsides of being academic is that you can speak for yourself. the professor professes and can a kind, but it is very different than the judicial decision process. so it is very difficult for me to say how i would have decided that case if i had to go through the whole process of the judicial decision-making that i was describing this morning now having been a judge for three years, i can say that i appreciate greatly the distinctions between academic writing or academic speaking and judicial decision-making, such that a judge might look at an academic and say you are not on a multimember court. you are not a strained to decide

this coming you do not have real parties in front of you consulting with lid against. it is just a different process. >> i view that one so interests leading lean, because you are commenting on the public policy result which you and my colleage republican side have said should not be a public policy and you said, okay, that is okay, but then you were really clear on your legal outcome in terms of your view of whose side you were on. you were on scoliosis died, and tha --scalia's side, which woule kicked millions of people off of their health care, and that would have taken them off of their subsidies. the dichotomy that they are trying to make between policy and legal is that legal decisions affect policy. i am looking at people in my state that will deal with this as the affordable care act if it is struck down paired allies are from st. paul who was born with

cerebral palsy, because of the affordable care act, he is now 16 and is a proud boy seeped o out. out -- boy scout. and without the aca, that would be that orb are not from the suburb of st. paul whose daughter has multiple sclerosis depends on benefits under the aca. lily i know who has a 21-year-old son with autism and needs her children to stay on her insurance until she is 26. melanie, a senior from duluth, being treated for ovarian cancer and needs access to the affordable care act. these are real world situations. and i get that you are not saying how you would rule on these cases, so what does that leave us with to try to figure out with what kind of judge you would be? and i was thinking last night when i was growing up, we would

go to northern minnesota, and we did not have a cabin, but we had friends that did, and we would go on these walks in the woods with my mom, and she loved to show all of the tracks on that path, whether they were deer tracks and she would have us figure out what they were, elk or a bear, and we would follow these tracks down that path. and he would always think that there would be a deer around the corner that we would see? and very rarely was there one, but we would follow these tracks. and when i look at your record, i just keep following the tracks. that's what i have got to do. so when i follow the tracks, this is what i see. you considered justice scalia one of the most conservative judges in the history of the supreme court as your mentor. you criticize the you criticize the decision by

justin roberts holding the affordable care act. you criticized the reasoning. you said in another case about the affordable care act that you liked the legal reasoning that he had the better legal argument, justice scalia had the better legal argument. you have signed your name to a public statement featured in an ad, a paid ad, the call for an end what are called the barbaric legacy of roe v. wade. which ran on the anniversary of the 1973 supreme court decision. you disagreed with long-standing precedent on gun safety which said felons shouldn't be able to get guns, something that was pretty important to me when i had my old job in law enforcement. it's something senator durbin asked you about. you suggested you agreed with the dissent in the marriage equality case that it wasn't the

role of the court to decide that same-sex couples have the right to be married. i think this was in a lecture you gave were you said the dissent view was that it wasn't for the court to decide. people could lobby and state legislatures. all this takes me to one point if i follow those tracks on that path. it takes me to the point where i believe that 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's what concerns me. i want to turn to an area where i think justice ginsburg, the seat we are considering you for, is truly a hero. that's the area of voting righ