chief justice and his opinion clearer. let me if i could put up another poster that may make this a little sharper in a way that is >> the supreme court is going to hear arguments as i said in this case a week after the election, and most americans are probably surprised to even hear about it. when i talk to a constituent who has a pre-existing condition, she was surprised this was even in front of the court. she said i thought that was settled. kerry owns a small business, she has a daughter she is raising and before the aca, she had to spend $800 a month for insurance, left her afraid of even going to the doctor's office and because of the aca, she's been able to get better quality insurance than she can afford, and she's got both type 2 diabetes and high blood pressure, but the aca guarantees

she can't be denied insurance or made to pay higher premiums either because of her gender or because of these pre-existing conditions. she expressed to me astonishme astonishment, many of us are engaged in this because we care about the constitution and we care about constitutional law and the ways in which it impacts the majority of all americans. help me explain to her what is it that the affordable care act settled eight years ago is back in front of the supreme court? >> senator, i spent some time with senator sasse talking about how the case winds its way up and it's because litigants chose to challenge the law again and it went through the district court and the circuit and now the supreme court has granted answering the question but as to the broader question which i think is a political one which is why are people fighting the affordable care act, you would have to ask the litigants. i don't know why they're

fighting it. >> to things on that. yes, there are no advisory opinions as you said in your exchange with senator sasse and you have to have standings but as senator whitehouse laid out, there's a whole network of groups that fund and develop and present test cases over and over and over, and this is an issue that will go before the court just a week after the election that is not distinguishable. they are centrally about the constitutionality of the mandate and whether it's a legitimate exercise of a taxing power. you don't get to the question if you haven't already determined the question of constitutionality. >> i think the question even if the mandate provision is a penalty, it doesn't affect the act at all if that provision can be centered out on the whole act withstands so i actually think

that severability is sort of one of the most important issues in the case. i don't think the question of characterizing it as a tax versus a penalty and also it's a different provision, one that wasn't zeroed out, one that actually had money attached to it. >> if i could, and this is the filing of the department of justice and the supreme court as you well know, the justice department is supposed to defend the constitutionality of federal laws of any reasonable defense can be made, and the trump justice department has sided with those advocates who are trying once again to strike the law down now and the courts when they couldn't accomplish that here. in fact, i'd argue they are denying the will of the voters that clearly in 2018 and deciding control in the house on health care want this to stay in the administration is arguing that this mandate which imposes no pain on anyone is

unconstitutional and they are arguing the entire act must be struck down as a result. i frankly think the doj is embarrassed by this brief, they rarely even talk about it, but it's in black-and-white and the quotes over my shoulder that the mandate is unconstitutional and must go and so the parts of the law that prevented insurance companies from discriminating against people with pre-existing conditions, the prevent discrimination against women, all of it must fall as a result. it seems to me that americans who are watching deserve to understand that this is somehow back up in front of the court the posture of the administration is taking, the ways in which it does follow the contours and the ways in which bluntly while i know you won't talk about this pending case, what you said in that 2017 article and what you wrote is highly relevant. just as a preliminary point, the vote to uphold the aca was 5-4,

correct? >> yes. >> and justice ginsburg was in the majority and justice scalia in the minority. so if you were to replace justice ginsburg with someone who followed precisely justice scalia's analysis on the linchpin question on constitutionality, one could expect it would be overturned. >> no, because if there were a direct challenge, they would be president and it's a body of doctrine that binds judges itself. so no, i don't think one could assume that in a separate point in time and that even justice scalia would necessarily decide the case the same way once there was precedent on the books. >> i agree and i look forward to discussing that in some more detail tomorrow. i have just 6 minutes. he reviews of resident and the ways in which they may diversion i think are important and important for us to spend some time on.

let me just recap this point. for president trump, four republican politicians, the argument about tax and about whether or not the mandate is a tax is the gateway to knocking down the entire affordable care act and also the line of attack being taken by the department of justice. you've already said it's not plausible to interpret the mandate as a tax. didn't think it was a tax when it was raising billions of dollars in revenue and certainly are unlikely to believe it's a tax when it raises no revenue, and the thing that might distinguish it is reliance interest and precedent and when i have more time tomorrow, we will go through that. but i just wanted to connect some dots, that trump has repeatedly vowed to get rid of the aca, has campaigned on it, has criticized the chief justice and said his nominees would do the right thing becaus, they arn court right now arguing a case to be heard in just four weeks

that it should be invalidated and a person you've criticized, chief roberts, a person whose opinion, decision you have criticized, justice roberts means in many ways that you've signaled i think. you were added to the supreme court short-list after you wrote that article. and today, my republican colleagues who themselves have promised to repeal the aca are rushing through your nomination so you can be seated in time to hear this case. it concerns me greatly that that is the circumstances we are in. let me ask one last line of questioning, if i might, and the 5 minutes i have left. is another subject on which president trump has been i think unfortunately very clear about what he hopes for from a supreme court nominee. just days after justice ginsburg passed, the president was asked why there was such a rush to fill her seat before the election and he responded, and i

quote, "we need nine justices, but the millions of ballots they are sending is a scam, it's a hoax, they are going to need nine justices. in the next day, he told reporters again, he doubled down. "i think this will end up in the supreme court. it's very important. we must have nine justices." our president has also been asked whether he will commit to a peaceful transition if he loses the election. has been asked directly and repeatedly and instead of responding in the way we expect of any leader of the free world with a clear and simple yes, he has tried to sow confusion and distress in the potential resu result. so your honor, i'm concerned that what president trump wants here couldn't be clearer. but he is trying to rush this nomination ahead so you might cast a decision, a vote in his favor in the event of a disputed election and is doing his level best to cast doubt on the

legitimacy of an election in which literally millions of votes have already been cast, most of them by mail. i was very encouraged again to hear from you specifically you have not had any conversation with him about this topic and that's not what i'm suggesting. in fact, you repeated promptly you are quite familiar with the recusal statute and considerations. but i think the core issue in recusal is that any judge or justice should recuse themselves from a case in which their impartiality might reasonably be questioned. given what president trump said, given the rest context of this confirmation, will you commit to recusing yourself from any case arising from a dispute in the presidential election results three weeks from now? >> thank you for giving me the opportunity to clarify this and i want to be very clear for the record and to all members of this committee that no matter

what anyone else may think or expect, i have not committed or signaled, never even written -- i've had a couple of opinions that have been around this law, but i haven't even written anything that i would think anybody could reasonably say this is how she might resolve an election dispute. i would consider it and i certainly hope that all members of the committee have more confidence in my integrity then to think that i would allow myself to be used as a pond to decide this election for the american people. so that would be on the question of actual bias and you asked about the appearance of bias and you're right that the statute does require a justice or judge to recuse if there is an appearance of bias and what i will commit to every member of this committee, to the rest of the senate into the american people is that i will consider all factors that are relevant to that question that requires recusal when there's an

appearance of bias, and there is case law under the statute and as i referenced earlier in describing the recusal process of the supreme court, justice ginsburg said it is always done with consultation of the other justices. so i promise you that if i were confirmed and if an election dispute arises, both of which are if, that i would very seriously undertake that process and consider every relevant factor. i can't commit to you right now for reasons that we've talked about before but i do ensure you of my integrity and that i would take that question very seriously. >> thank you, your honor. on the question of consultation, the former chief justice wrote a letter to members of his committee that there is no formal procedure for court review of a decision by a justice in individual cases, just something justice ginsburg did say that there was a practice of consultation. i think at the end of the day, what matters is removing any

potential conflict here. ensuring that there is confidence in our election, and the supreme court, and in its role is critical. i have reached out to a number of my colleagues to implore them to step back from the timing of this confirmation, to consider the possible confluence of three different factors here, an election, and aca case, and rushed timing in the middle of a pandemic, and i would just urge them one more time to think seriously about stepping back from this timing of this confirmation and that's not meant to impugn you or suggested in some way you've engaged in some inappropriate conversation, that's just the confluence of these events at this time in this place, this election will have enormous consequences. i am troubled by what you've written about the affordable care act. i am more concerned that the president has tried over and over and over to get rid of the

aca and the american people have consistently said no and that the majority of americans who rely on the ac in the middle of a pandemic would be significant and that the president has refused to embrace the american people's wishes and deliver on some compelling alternative plan and instead has taken the battle back to the supreme court where it will be heard in just a month. i think to reach out and to strike this critical statute down now would be the worst example of judicial activism which my colleagues say they don't want and i hope will not happen but i am gravely concerned by what i see. i believe your views are sincere, but i also think you generally think the affordable care act is unconstitutional. that's my reading. and you are entitled to that view. but this body and the american people bluntly of our president and the majority are able to swing the court out of balance

by replacing a justice ginsburg by someone whose views may be significantly to the right, the health of a majority of americans may well be in peril. thank you, your honor. >> thank you, senator coons. judge, if it's okay, we will do senator hawley's 30 minutes and then take a break. so senator hawley, you're on deck. we will try to take a 15 minute break and just one observation, a lot of good questions and not one time has senator and the judge talked over each other. i hope the american people understand that this is the way that it should be. senator hawley. >> mr. chairman, thank you. i like to begin by asking consent to enter two letters into the record supporting the judges nomination the first from the family research council and the second from a group of state attorneys including the state attorney general in my home state of missouri. >> without objection. >> thank you very much. judge, it's good to see you

again. i've been so impressed with your answers today. it's quite extraordinary and i look forward to visiting with you a bit here. can we start on the topic of independence picking up on where senator coons was just questioning you, i've heard my democratic colleagues over and over again suggest that because you clerked for justice cobia that you will automatically vote however he did and his method to you. did justice scalia tell you what to do with your career? if you made a habit in your life of doing exactly what justice scalia told you to do in your professional career? >> as i said earlier, if you confirm me, you are getting just as barrett, not justice scalia. i share his method of interpreting the text but i didn't agree with him in every case even when i was clerking. even if i disagreed, but the fact that we share the same approach does not mean we would always reach the same result. >> and you make up your own

mind, don't you? and you have your own views, i think it's fair to say. is that accurate? and you are a very accomplished interest in your own right, is that fair to say? >> felt a little immodest to opine. >> very accomplished so this that everything must just be whatever justice scalia did you would automatically do i have to say i think is a little bit demeaning. let me ask you about some other attacks that you've endured today. i noticed yesterday we were assured that you would not be attacked on the basis of your faith. i am not surprised because for three and a half years we have heard consistent attacks from the democrat side on nominees on the basis of their faith including you and we talked about this some yesterday. today, the second democrat senators speak questioned, criticized you for speaking to a christian legal group that has a program for christian law

students. where you gave a lecture once or twice on constitutional and statutory interpretation. so let me just ask you about that. you've talked about your faith and this has been well established, you to accept an invitation to speak to christian law students on the topic of your specialty. tell us why you accept the invitation. >> i have several other colleagues who had participated in the blackstone program lecturing, and i heard great things about it and had a contingent of students from notre dame that regularly attend this program and they were among our most engaged and smartest students and i went and did it the first time i did it i really enjoyed it, the students were very engaged, so i might have done it for a five each summer i would go and give a lecture on a regionalism that was one hour of a summerlong program so i went and gave my one hour lecture at the beginning of it and i

thought it was fun to talk about the constitution to an engaged group of students was fun for someone who is a law professor. >> are you aware of anything in the constitution or laws that say that it is a disqualification for office for a believer of religious faith to go and lecture to law students of a similar faith in your area of expertise? >> i certainly -- want to be careful i am not veering into answering hypothetical questions, but i certainly didn't think there was anything wrong with my going to speak to a group of christian law students about my expertise. >> let me ask you this, senator lee he also raised a pledge to signed regarding abortion. you told us, told the committee in response to his question you and your husband both signed it and i am looking at the advertisement in question right here, you said you signed it on your way out of church if i remember correctly. >> i did.

that was almost 15 years ago, there was a table set up for people on their way out of mass to sign a statement validating their commitment to the position of the catholic church on life issues. the ad that was next to it i don't recall seeing at the time and in context looking at it looks to me like that was an ad by the st. joseph county right to life group, the statement that i signed was affirming the protection of life from conception to natural death. >> and you just made reference to the fact again that he was in church. why would it have been in the back of church? why would this have been available to sign or not you so chose in the back of church? >> that is the tradition of the catholic church on abortion. i feel like i should emphasize here is i emphasize to others

that i do see as distinct my personal moral religious views and my task as a judge. >> is it safe to say following that this decision, the signature you lent reflects your understanding of your church's teaching and your own personal views? that's what this says that you've signed. >> what i like to say about that is high sign that almost 15 years ago and my personal capacity still is a private citizen and now i am a public official, so while i was free to express my private views at that time, i don't feel like it is appropriate for me anymore because of the canons of conduct to express an affirmative view at this point in time, but what that statement plainly says it is when signed that statement, that is what i viewed at that point as a private citizen. >> and i'm not aware of any law or provision to the constitution that says that if you are a

member of the catholic church and adhere to the teachings of the catholic church or you have religious convictions in line with those of your church teaching that you are therefore barred from office. are you aware of any constitutional provision to that effect? >> i would think that would make it unconstitutional. >> let me ask you about that since you bring it up. article six says no religious test shall ever be required in the qualification to any office or public trust under the united states. can you just give us your sense as a constitutional expert, scholar, and judge now of the significance of article six for our constitutional scheme? >> it prohibits this body, prohibits the government generally from disqualifying people from office because of their religious belief. >> and it guarantees, doesn't not, the freedom of religion? it is amendment one, the first amendment will go on to talk explicitly and i want to

ask about religious liberty but article six is significant in that it sets out one cannot be -- no american citizen can be kept out of office based on his or her belief. you don't have to go and get someone's approval and certainly not someone in government over what you believe clement doesn't meet this test or not, you don't have to get any signoff sent any kind of sign offs are explicitly ruled out by the constitution. it is at fair characterization? >> and makes claim that the nomination or belief cannot be a reason to disqualify someone. >> that's why i continue to say it is vital that we underline in the constitution with this clause and insist that it be applied in the context of your confirmation and every nominee for every high office comes before this committee there are no religious test for office and the attempt to smuggle them in even in the midst of this committee must be resisted on

the basis of the constitution itself. let me ask you about the first amendment, the free exercise of religion and is of course how the first amendment begins, congress should make no law respecting an establishment of the legion or prohibiting the free exercise thereof. tell me what you think this says about the place of religious observance in american life and its significance. why is it protected like this in the first amendment. what do you draw from that? >> i think its presence in the bill of rights like all of our rights shows that it was one that the people for generations beginning in 1791 considered essential to being a free people. >> and there's no indication from the constitution that religious believers are second-class citizens, is there? >> the free exercise certainly suggest to the contrary. >> the free exercise clause and first amendment suggest that the exercise of religion, worship, religious belief gets special

protection. is singled out here for protection along with immediately after speech, press, the right to peacefully assemble, religion is given a special place which the united states supreme court has recognized. let me ask you about attempts to disfavor religious believers on the basis of faith. is it your understanding, can a government at any level, federal, state, municipality, can they treat religious believers differently, can they single them out for disfavor versus a nonreligious group, is not permissible in our constitution? >> that's a complicated question because there's a lot of doctrine surrounding that and that question would come up in a case with facts and it would require the whole judicial decision making process so it's not a hypothetical that i can answer. >> let me ask you about the court's decision, a unanimous

decision which touches some of these questions in which answer questions about a church's ability in any house of worship to hire and fire their ministers with those who perform religious functions and religious services and in that unanimous decision, the court says that houses of worship are different, that they are unique and they are given special protection under the first amendment and therefore they must be afforded special status. they have to have the ability for instance to hire and fire ministers, those who perform religious functions, the state and government cannot interfere with that. do you agree with the teaching of that case? do you think that case remains good law and is a significant decision? >> i think the way to answer that question is i can't grade precedent, but i can talk about precedent from my court, so i was on a panel that decided a case which applied it to a board situation of a jewish school which had a fire to teacher, and

the teacher sued, and the question was whether that school was entitled to treat her as a minister under the ministerial exemption recognized. and my court, the panel that i was on, says that she was a minister, and we took the factors and said nothing was a bright line test, you look at the cluster as it was designed to give religious institutions the freedom to hire and fire their ministers and in this case, one of the jewish faith as consistent with their practice of their faith. and that view was embraced by the supreme court last term. >> i think it's vital in this time in this season where we are

seeing many challenges to religious independence on the many challenges to the ability of churches to conduct worship on equal terms as secular organizations at the supreme court's unanimous decisions in this area, the trinity lutheran church switch was not unanimous but was recent very important case as well, i would say for myself i think the lines of the supreme court has drawn regarding the first amendment and the status of houses of worship, regarding the rights of religious believers that now more than ever, it is vital that those be respected and that the constitution be fully enforced and that the line of cases that is now multi-years old and the supreme court is set out to be followed. i certainly hope that you will respect and apply that precedent going forward and i don't have any reason to think that you won't. let me shift gears and ask about another attack that has been made on you today.

the case we've heard about senator durbin, the cantor case first of all is a case about the second amendment, the right to keep and bear arms. and it's about whether or not someone who had been charged and convicted or pled guilty to a felony could keep and bear arms under certain circumstances. is that a fair summary? now, i have heard repeatedly from our democratic colleagues that you write in your dissent that the right to keep and bear arms is an individual right but the right to vote is not an individual right, but maybe i'm reading a different opinion and that's not what you say in the opinion that i see, for page 50 of your opinion or of the joint opinion, you refer to civic rights, voting rights and civic rights and say they are individual rights.

a moment later, you say for example, the right to vote is held by individuals so that set the record straight here. in this case, you say the right to vote is an individual right, is that correct? >> that is correct. >> and the distinction between a civic right and the second amendment has to do with the purposes of that right. first of all, that's not a distinction you invented, is that correct? remake that is correct. >> you are replying to a chain of cases. >> also the arguments the litigants made. >> it talks about whether the right to vote, the civic purposes are and gives us a stake in our democracy. is that fair to say? you never at any point and say of the right to vote is secondary or less then, less fundamental than any other right. is that fair to say? in fact, your whole point in this case which was a fundamental rights case and is not a voting rights case has

nothing to do with voting rights, your whole point is that you think that your colleagues on the seventh circuit actually constricted fundamental rights to narrowly met as the supreme court of the united states, that the right to keep and bear arms is a fundamental right and you think in this case your colleagues were constraining that fundamental right to narrowly shedding some people out of it. is that fair to say? >> we did disagree about the scope of it. >> just to make the record perfectly clear, the supreme court has said over and over that the right to vote is a fundamental right and i think you have a firm that and recognize today, you've said that his supreme court precedent. am i correct about that >> greg: they've set up repeatedly they adhere to the one person, one vote standard as baseline, the touch tone, the keystone to that entire doctrine. you might have that correct? >> that is correct. >> nothing in your opinion

challenges that, nothing? >> not one iota. >> i am glad we are clear on that. senator durbin said in part of his line of questioning on this, suggested that perhaps that here opinion in this case somehow which is nothing to do with voting rights makes you friendly to what he characterizes attempts to deny people the right to vote on racial grounds. he went on to say that we all come to, every judge, all of us who come to the law, every judge who comes to the bench comes to the bench and cases with their own individual experience and viewpoints let's talk about that for just a second if we could when it comes to the fraught but vital issue of race and your own experience with that. you when your husband are the parents of a multiracial family. >> yes. >> can you give us some sense in your personal experience with that has been like for you, what that means to you, what experience you bring to the

bench because of your experience as a parent in unique context? >> i think i could say how it has shaped me as a person. has certainly whenever you have the life experience that makes you acutely aware in your interactions with other people, it gives you empathy for them in the same is true of our having a son with a disability. but i want to make very clear, senator hawley, that while my life experiences i think i hope have given me wisdom and compassion, they don't dictate how i decide cases. because as we discussed before and it has been discussed a couple of times, sometimes you have to decide cases an in ways that you don't like the results a while i hope my family has made up me a better person in my children definitely have given me a new perspective on life,

still in applying the law and deciding cases don't let those experiences dictate the outcome. >> you will follow the law wherever the law leaves. >> yes. >> which is a good way to bring us back full circle where he started about your own independence, you have cultivated over the course of your various distinguished career a reputation for original thinking, for independence, for i would say courage and toughness, and you've never -- i see no evidence in your record that you've ever compromised, kowtow it, or bend your position to the whims of other people, especially people in power based on what they wanted you to do or expect you to do or told you to do. is that fair to say? i miss something? >> i think that is fair to say. >> i admire the ways you answer these questions in your forthcoming on this and with

that, mr. chairman, you will back my time. >> thank you to senator hawley. we will reconvene in 20 minutes, and we will go to about 6:30 and take a 30 minute break to have some dinner, and come back and finish up found one today. so a 20 minute break. >> bill: so that is a solid six and a half hours of day number two. good afternoon, i am bill hemmer, 20 minutes as senator graham says and what will be a long week for judge barrett in this committee. a marathon day of questions that started it 9:00 a.m. this morning likely wrapping up at 9:00 p.m. tonight, questions about gun rights and voting rights, abortion and health ca health care. personal opinion from her rulings has come up multiple times, democrats on the committee repeatedly coming back to a case before the court on obamacare, that case will be heard a week after the election exactly four weeks from today.

a moment ago, judge barrett said "i am not on a mission to destroy the affordable care act." and that has been as clear as can be as it relates to that case. shannon bream shannon bream is inside the hearing room, andy mccarthy, former assistant u.s. attorney, martha maccallum, mike davis as advisor to the judiciary committee on nominees in the past and former congressman and prosecutor trey gowdy all join me now and if the congressman is with me, i will begin with him, trey gowdy and south carolina comes to us alive now. what is your impression so far of what we have gone through today? that's not trey gowdy, that's mike davis. so be it, mike, let's begin with you. >> they make barrett is doing an exceptional job today, showing the american people that she is exceptionally well-qualified tob just like the

bar association just rated her. she is adept at answering these questions, she knows what she's allowed to answer. just like she did in her hearing in 2017 or the seventh circuit, she is doing a very good job today. >> bill: standby. andy mccarthy, were you surprised by the statement, "i am not on a mission to destroy the affordable care act." when you hear that analyzing this earlier in the day that is a suggestion of a clear signal as to how she could potentially rule in this case before the court in november. what do you think about that? >> i think she's been very careful to try to make clear that in her mind, this is not an affordable care act case in the sense of i, amy barrett are making a decision about the policy of obamacare. she is looking at this as a severability case and repeated

again from what she can detect the issue in the case, not in the case yet, is something that's very clear and applies not just to obamacare, but to a zillion other legal issues which is if you have an invalid part of a large statutory scheme, does the whole scheme have to go just because the invalid part goes? so she's looking at this as a surgical jurisprudential exercise, not a policy commentary on obamacare and the only thing i can say, i think she has definitely handled it but i think it is political malpractice to have put her not only just her but to put the trump campaign in this position in connection with a litigation that i don't think has any chance of success but has given the democrats the ability to try to frame her as somebody who is being put on the court to get rid of obamacare and also three weeks before election day

basically pound the drum of obamacare which is of some concern to a lot of voters. >> bill: so you would go ahead and drop the course but this was challenged back in march long before you had covid and the economic fallout and everything that's happened since then. >> it wasn't as a matter of legal merit, wasn't any better in march than it is today. >> bill: we have the signal from south carolina, welcome to our coverage and what is your observation of the previous six and a half hours? >> i think she's doing great, but i also think there's a certain message of discipline on both sides of the aisle, the democrats are focusing on health care and suddenly wanting to scare people that she is going to claw back rights and the republicans are remarkably well disciplined, much more discipline than the house judiciary committee ever was. >> bill: why is that? >> the stakes are high, and what

you just saw with josh hawley, i'm sure josh wanted to do something else with his time, but the group as a whole said you need to give her a chance to explain the following things. i think they are working as one unit which as a republican is incredibly rare and i am happy to see it. >> bill: inside the hearing room we go. only got a couple of minutes here and i will come back in a moment but shannon bream is inside the hearing room and my don't you take our viewers through what you have heard today. >> we are watching judge barrett and is working without notes where she is talking about cases that she has written cases involved with an understanding it clearly shows you and has done extensive preparation and is of a different legal mind. i'm a lawyer, i would never be called and they were special people, only nine at a time who are qualified to do this kind of

job so i think she is showing the temperament that she has, the intellectual ability around these different senators without telegraphing what she's going to do in any particular case. senator coons was questioning her and saying this is going with such speed, the president clearly wants you to get through, once he won the bench so that any collection dispute that lands on the supreme court but would be willing to vote for him and said something to the effect that i hope you would know i have more integrity than to be upon for anyone. she said i would be independent. i have made no stances on any particular issue so even though they continue the democratic side continuing to try to link efforts to overturn the affordable care act then to be there to rule in favor of the president in an election dispute, spending a lot of time today trying to say that she has no agenda, not hostile to the

aca, and saying i don't attack people, but ideas. so it seems like that is her methodology moving forward, not getting anything away but trying to assure that she can be a neutral judge. >> bill: will not be used as a pond for the american people and i want to bring martha maccallum into this conversation. prior to that, was asked about the opinion she wrote in 2017 and said i did not chastise nor did i criticize chief justice roberts. and she's confirmed and we expect that to be the case barring any unforeseen political land mine that drops in the middle of this hearing or sometime thereafter, you would have to chief justice roberts on the cord and they could be fighting for competing ideas on these laws for the next 20 years and beyond. >> i think her point was she had

nothing to dispute with regard to justice roberts himself. she said i was just in the minority in terms of the way that she interpreted aca and its constitutionality so she certainly wasn't alone in the opinion that she expressed about what she called stretching the statute in a way that allowed it to be maintained, and i'm paraphrasing, not exactly the way that she put it. but what is so fascinating about these proceedings and about the supreme court itself, can't help but think when the discussion went back and forth between senator coons and judge barrett on president trump, he can want whatever he wants, tweet whatever he wants to tweet about these issues, he can hope that the person that he puts on the court will see things the way he sees them, but the entire structure of the court is so once that nomination happens, that person can be fair and exercise jurisprudence the way they see appropriate based on

the law. and we have seen time and time again that presidents have put people on the court and been frustrated by them at times, clearly president bush -- there was frustration over judge roberts, justice roberts with regard to aca and i would also point out that justice kavanaugh and justice gorsuch have split on many decisions. they were put their and were split on many decisions and there wasn't constitutional to the foundation of the country and it is as should be. calling balls and strikes is justice roberts said so famously as she sees them. >> bill: on the obamacare issue, senator mike lee a bit earlier saying we are fearmongering over this. judge barrett is appearing on this table sitting at that table with no notes, no pence, the briefing and john roberts lie

from the north lawn at one point, everything in front of you, a single sheet of paper has the united states senate on it. she didn't bring a pen to this hearing, taking no notes. from the north lawn now, as to how this is going this far. >> very often when you are the smartest person in the room, you don't need notes and clearly has got a depth of knowledge of what a depth of recollection of the things that she has been involved in that would challenge most people on this planet i would think. the president has been uncharacteristically restrained and watches the proceedings here from the white house, probably a wise thing to do for the president not to weigh in in the middle of these hearings as to what he's thinking. cheerleading her ron particularly given some of the concerns that have been expressed on the democratic side and the reasons why they want to get amy coney barrett on the supreme court before the

election. but certainly, the white house has been very supportive of her particularly this idea of whether or not she would need to recuse herself from anything concerning the election, has tweeted out that bill clinton put a couple of justices on the supreme court who had to deal with things and didn't recuse themselves from it, so why should judge amy coney barrett do it as well? i was just going back a couple of weeks ago to a question i asked president trump in the cabinet room while he was in there with the attorneys general of the republican attorneys general of many states, and i said to him why do you think it's important to get justice on the supreme court in time for the election and saying he thinks the election is going to end up in the supreme court and wants to make sure that there is a complement of nine justices so the court doesn't get hung 4-4 if there are questions about who wanted a particular state or who won the overall election and

you'll notice that it is a question that at least a couple of democrats have put to judge barrett, would you be the deciding vote in favor of the present in any election dispute and she has handled that question quite definitely. >> bill: as we heard a moment ago, want to get back to trey gowdy on the continuing question andy mccarthy raised about why pursue this obamacare case so close to election. do you agree about that california versus texas case november 10th? >> i think andy raises a really good point. there have been two attempts to undo the aca jurisprudential he and they both have failed, i think it's really important to take note, four of the justices felt the way the obama administration was arguing it was unconstitutional, all nine disagreed with their commerce clause analysis. wasn't just a conservative bloc, all nine thought that it should not stand. there are 1,000 ways to protect

pre-existing conditions and provide access to health care. i think would judge barrett is saying is find a way that passes constitutional muster. there were 1,000 ways to do it but is not the supreme court's job to find one of those ways. >> bill: we have at least four more democratic senators today and in a short around tomorrow. kamala harris is one of the four still remaining. we believe she will appear virtual as she did yesterday. what is your sense of the tone or the attitude on behalf of democratic senators today? i noted earlier some of them seem to be a bit tender, not commanding and perhaps not demanding. is there a sense that you're talking to the american people the same time thinking about suburban house wives all over america, maybe want to be a bit more sensitive, let's say, 21 days away from an election? have you given that some thoug thought? >> i've never thought this was

about judge barrett, it's about the u.s. senate, that the chairman of the committee all and very tough reelects, they are not going to stop her from being on the bench, their real goal is to keep the lead in the presidential race and take the senate and that's why you're seeing the questioning you are of her, it's about control of the senate, they are not going to stop her nomination. >> bill: thank you for your time and appreciate you being with us today, shannon bream inside the hearing room and try to get an idea as to what comes next. we said 9:00 p.m. tonight, looks like senator graham is forging straight forward toward that time. >> he wants to get through that first round today because tomorrow will be the second round and it's interesting because you saw a couple of senators use most of their time today to speak rather than question when that was the case with senator whitehouse, the democrat from rhode island who spent 30 minutes talking about dark money and donors and funding backing judge barrett and we kept wondering if he would get to a question and he eventually said i just wanted to

set that up and lay it out and he had diagrams and visual aids and said that is going to set the table for our conversation tomorrow so for some of them, they know they have another bite at this apple and they will go through another round of questions tomorrow and of course but they are hoping as they get something today that they can then mine that will be a better presentation for them for more difficult or deeper questioning about a particular issue, but it seems we are contending with those themes, the affordable care act, what she would do if she was sitting o on the high court and an election dispute ended up there, whether she feels there are certain things that are super president, that's one of the things she got into a senator klobuchar who herself is an attorney, ran for president over the last year as well and they have this conversation about whether cases like roe vs. wade are super president and it was the first time i saw judge barrett seem to get a little bit more stern. some of her answer saying you can keep asking me about cases,

but it's a very tiny handful of scholars across a spectrum believe are super president so you can keep asking me but if they are outside of that handful of cases, i'm not going to change how i feel about what is considered super president and she said roe vs. wade is not in that handful of cases. >> bill: an interesting exchange, you're right about that. i want to bring back martha maccallum. we remember the justice kavanaugh matter from two years ago, and we were remarking earlier that after his hearing after he went through the committee and then all hell broke loose in washington, d.c. you wonder if you get the 9:00 tonight and if it continues along this same pattern that this could be a fee t fait acco. do you see anything out there that could stop that? >> not at this moment. however, i would urge everybody

to go back in time to this part of the process and the kavanaugh hearings as well and the discussion was very similar that he was very confirmable, there wasn't much that anybody could do on the democrat side to prevent him from being confirmed, that was much earlier obviously in the trump presidency and the belief was that he was going to sail through. then you had this document that had been given the dianne feinstein's office months before which then surfaced in the heat of the moment and right before the final part of this confirmation process and then everything was thrust into complete chaos and you had brett kavanaugh a return to the hearing room to stick up for himself, christine blasey ford put her right hand up in the air and tell her story as well. we also remember what we went down with anita hill and clarence thomas as well. so i certainly don't anticipate

anything along those lines happening, and it does feel within the window of the election that this is not the hill that democrats want to die on. they have lay down some very strong markers on health care and making political points along the way as they go and i think they also are keeping open the window that they may decide that packing the court is the answer to this after the election if indeed they show up the senate and the white house. >> bill: going to get to that in a moment but before i do that, what is your feeling on this? deep and experience with this. do you see a roadblock here or safe passage? >> i agree with martha that the democrats will come up with something like they did with the kavanaugh confirmation and they did with the thomas confirmation. she will be confirmed by the end of this month, it shows how they want the blood in her rep to make it a political win for them

so brace yourselves for something. >> bill: we shall. it's 2020, after all. standby there. i mentioned jacqui heinrich, did go a little further last night in cincinnati, ohio, about answering this question packing the court, wasn't a complete answer but took a step further and what did he say? good afternoon. >> good afternoon, the court packing issue is certainly top of mind for the biden campaign today, but really focusing on turning out deep blue voters in broward county, this is his third trip to the state since labor day, the focus is on those traditional party voters like seniors, president trump won by just over 113,000 votes in 2016 but won seniors by about 330,000 in the polls show his standing with that demographic was harmed by his coronavirus response. biden is driving their concerns home. he talked about social security

also which were .7 million floridians rely on and like biden, hillary clinton was also leaving florida at this stage in 2016 but president trump took to tampa and orlando areas and in biden's last trip, try to turn that around appealing to military veterans in tampa, hispanics and orlando and then turning to miami were president trump is trying to paint biden as a radical socialist but this appeals to his reliable base, seniors and black voters in miramar. a part of this stance in the meantime is not getting backed into a corner over the court packing issue with the confirmation hearings underway on capitol hill, some progressives do want that option on the table and after refusing to answer the question many times, biden said yesterday he is not a fan of court packing some surrogates like chris coons, delaware senator tried to explain this away saying what republicans are trying to do by jamming through their nominee this close to an election is court packing and he

has expressed opposition to it in the past and his answer yesterday was the clearest we've gotten since he refused to touch this issue since the vacancy came up. >> bill: thank you. just looking at this calendar, you think about the monster three and a half weeks we just gone through, ruth bader ginsburg passed away 25 days ago from a national election 21 days out, the president came down covid positive and now back on the campaign trail and in between, you had a debate in cleveland, ohio, that was i not met by most americans when joe biden and donald trump got up on the stage. senator graham is back in the room and i think we have a moment or two to go back to andy mccarthy and give us a forecast perhaps over what we can expect next. >> i think kamala harris is going to lower expectations and has been lowering expectations. she's not there. it's hard to have a moment when

you were on a remote, and most of her tweeting has been about the process and the prudence having the hearing during the covid pandemic. i think she is just going to look at this as compare her to justice ginsburg, that will be the main line of questioning, but otherwise take the temperature down and it will not be the moment that people are anticipating. >> bill: it appeared yesterday she was reading from a script off a computer in front of her. would that be the smart way to go now or not? >> she wants to avoid any mistakes. she is not going to have a magic moment out of this very thing for her the best thing to do is avoid a gaffe, don't get in the legal argument with somebody who is a great teacher and just don't do that. >> bill: are 20 minutes are up. we go back inside the hearing room and it should be senator blumenthal, the democrat from connecticut who was now the microphone. >> whether you would participate

in the decision involving the upcoming election if you are confirmed, i continue to believe that you were to participate in a decision involving that election, it would do enduring explosive damage to the court. i think you know it would be wrong. not because of anything you've done. in fact, i am not raising the issue of whether you've done any sort of dealer commitment because of what donald trump has done and my republican colleagues because they have indelibly put that issue your integrity through their statements, the president has said that he is putting you on the c court as the ninth justice so you can decide the election.

he's been very clear and transparent. and the american people are not dumb, they are watching and listening, and if you were to sit on this case if it goes to this supreme court, the american people would lose faith and trust in the court itself. would be a dagger at the heart of the court and our democracy this election is decided by the court rather than the american voters, so i wanted to begin by making that point and then go to again, the real people who are really in this room with us and who will be affected by you as a justice. yesterday, i introduced you to connor, he's ten years old, i was with him for his birthday, a remarkable champion. he was diagnosed as you may

remember with deschene duchenner dystrophy at age four and his parents were told to take him home and give them a good life because he would soon lose his ability to walk, told his muscles would get so weak he would eventually lose his ability to smile, and he still smiling. what lies behind that smile is untold pain, physical pain, the english of going through the needles and the prodding and the treatments, but for his family, it's also the anguish of wondering whether they'll be able to pay for treatment that has kept him alive and whether he will be with them for all of life's milestones. they sent me a letter that they

asked me to share with you saying you, judge barrett, please protect conor. and they wrote also for millions of other americans, 135 million americans, many of them children just like conor but also christine miller from bloomfield connecticut was diagnosed with a thyroid condition, it was only discovered because of the aca which gave her affordable coverage for the first time in a long time using connecticut's exchange, and they wrote for people like julia in cheshire connecticut, she suffered from headaches for years, and put off