forecasts or previous, as justice ginsburg put it about any case or any precedent but i will repeat what i said throughout the hearing, that i made no promises to anyone. i have no agenda. there are 598 volumes of the united states report. that is something that -- >> jesse: welcome to "the five." we are watching the amy coney barrett hearing and she is now facing questioning from senator mazie hirono. let's listen in. >> so that when six newspaper ad you signed that said you "oppose abortion on demand and defend the right to life from fertilization to natural death." it's not just the fact that this newspaper ad you joined said what i just read but it also said "it's time to put it in fact their barbaric legacy of roe v. wade." 2013 speech you gave were you said that the roe decision "permitted abortion on demand" after you said you had opposed abortion on demand in 2006.

what underscores my concern about your willingness to overturn roe v. wade which is really the expectation that the president has in which senator hawley fully expects you to do because you've met his litmus test. the precedent. you've argued that it's a justices duty to follow the constitution which explains, she should, regarding your view on precedent, that that she should "enforce her best understanding of the constitution rather than a precedent she thinks clearly and -- in conflict with it." use in constitutional cases are the easiest to overrule because you bring your own assessment of what the constitution requires. as you said, if the president is clearly in -- the precedent isn't conflict with your view of

the competition then the precedent falls by the wayside. you did indicate there are a few cases that are immunized from overturning because they wouldn't be challenged in the first place, i.e. brown v board of education. but roe isn't one of those cases because we know that they're all all kinds of challenges to roe basically because the states are very busy passing all of these laws. a woman's right to an abortion. he also said in that speech that even if roe is not overturned, you said "without overturning roe," you explained "the question is how much freedom the court is willing to let states have in regulating abortion." and so there are 14 cases right now relating to state abortion restrictions making its way

through the circui circuit courd some of these are going to land in the supreme court. the 14 cases include the following restrictions: six cases involving bans on abortion starting at gestational ages ranging from six to 24 weeks. two cases involving bans on a particular type of procedure, dilation and evacuation, that accounts for nearly all second trimester abortions. one case involving a requirement that fetal remains be buried or cremated. four cases involving laws imposing unnecessary requirements on abortion providers like transfer agreements with local hospitals. four cases involved so-called reason bans, two cases related to parental notification and consent. there are real reasons why the american public is concerned that you will overturn roe or basically strip it of all meaning so that it becomes a nullity. you will have these cases that as you say, the open question is how far the supreme court will

go and letting states put limits on abortion. so that is why a lot of people are very concerned about your views as articulated. nomination which convinced senator hawley you met his test. this morning senator feinstein asked you a question about the supreme court's 2015 decision, a case in which the court recognized the constitutional right to same-sex marriage. i was disappointed that you wouldn't give a direct answer whether you agreed with the majority in that case or if you instead agree with your mentor, justest scalia, that no such right exists in the constitution. even though you didn't give a direct answer i think your response did speak volumes. not once but twice, used the term sexual preference to

describe those in the lgbtq community. let me make clear. a sexual preference is an offensive and outdated term. it's used by anti-lgbtq activists to suggest that sexual orientation is a choice. it is not. sexual orientation is a key part of a person's identity. sexual orientation is both a normal expression of human sexuality and immutable was a key part of the majority's opinion in obergefell which scalia did not agree with. if it's your view that sexual orientation is merely a preference, as you noted, then the lgbtq community should be rightly concerned whether you would uphold their constitutional right to marry. i don't think they use the term sexual preference as -- i don't think it was an accident. one of the legacies of

justice scalia and his particular brand of originalism is a resistance to recognizing those in the lgbtq community as having equal rights under our constitution. in 1986 justice scalia wrote a dissenting opinion. defending the state's ability to openly discriminate against lgbtq community. in 2003 justice scalia wrote a dissenting opinion in lawrence v texas defending a state's right to criminally prosecute someone for sam same-sex activity. justice scalia wrote another dissenting opinion, defending the federal government's right to deny federal recognition of same-sex marriage and two years after that in obergefell, justice scalia wrote yet another dissent and argued that there was no constitutional right to same-sex marriage. under justice scalia's judicial philosophy, states could openly

discriminate against the lgbtq community. same-sex couples could be denied the right to get married and they can actually be thrown in jail if they engaged in sexual intercourse. there are an estimated 11 million adults who have identified as lgbtq living in this country. since obergefell was decided in 2015, approximately 293,000 same-sex couples have gotten married and many of these people are rightly afraid that if you are confirmed, you would join with other conservative members of the court to roll back everything the lgbtq community has gained over the past two decades and push them back into the closet. now, two sitting justices are already calling for obergefell to be narrowed if not right overturned. just last week, justices thomas and alito issued a statement concerninconcurring with the cos decision to deny a case

involving former kentucky county court who refused to issue marriage certificates to same-sex couples. they accuse the court, and this is justices alito and thomas, they accuse the court of "reading a right to same-sex marriage into the 14th amendment even though that right is found nowhere in the text and these two justices signal that obergefell is a problem that only the court can fix." coupled with your use of the term sexual preference, coupled with your view on presidents an. the view of the constitutionality should overtake or overcome precedents if it's in conflicts. this is why so many people in the lgbtq community are so concerned that you would in fact

join the signaling that these two justices have already put out there that obergefell will fall by the wayside. thank you, mr. chairman. >> thank you. senator ernst. >> thank you, mr. chair. judge barrett, thank you so much for being here today with your beautiful family, as once again we appreciate the support you are showing to judge barrett by being here today. judge, i want to offer you the opportunity at this point. is there anything from earlier today that you feel you need more time to respond to? >> thank you, senator ernst. i would like to make a quick follow-up to some of senator hirono comments. i've said a number of times during the hearing that i can't comment. >> jesse: welcome back to "the five." we are going to dip out quickly for an analysis and will get

right back to the hearings. we've been watching this, brian kilmeade, for what is this now, six going on seven hours. i think everybody would agree that this has been a flawless performance by amy coney barrett. the democrat senators have not gone after her religion. many people expected that. they have been respectful but have not been able to pin her down on any major issues and give any republican senator a chance to second think confirmation vote. >> brian: i 100% agree. the decorum both sides have shown. obviously republicans are not going to be hostile towards her. i found it educational. i was kind of embarrassed to say how much i learned during the hearing but i learned a ton during the hearing because it was a an honest exchange of ideas. the two themes: recusal. we need you to recuse in cases goes to a court we can figure out a winner between biden income, we need you out of there and we need you to recuse when it comes to obamacare.

i have illustrations of families will never meet and people will never know. all the stuff yesterday was a bridge too far, as was today. talking about law and order, the courts and whether belong or n not. one thing that stood out was senator cornyn, asking, can you show me your notes? it was a u.s. senate blank sheet of paper. to be that complement to questions from 20 senators for 30 minutes and not need notes, pretty impressive. >> jesse: justice sotomayor and kagan had notes in their hearings. she did not have notes. i think everyone was impressed by her intellect, her ability to articulate, or ideas about the constitution and defend her physicians in a way that doesn't commit herself in a way that would make people think this is how she's going to rule. >> dana: we should point out that kavanaugh also had notes and she doesn't.

i am in awe. she is unflappable, poised, she's going to be a role model for women everywhere. she's calmly answering the questions. she doesn't get riled up. it's a most painful sometimes to watch the questions from the senators because it's embarrassing how much more chinos than they do. so many interesting exchanges but if we could pull up sound bite number five. this was a moment where she talks about how her family reacted when george floyd was killed. i thought maybe we could play that encase people missed earlier today. >> jesse: let's play it. >> given that i have two black children, it was very, very personal for my family. 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 have not yet experienced

hatred or violence. for vivian, to understand that there would be a risk to her brother or a son she might have one day, of that kind of brutality has been an ongoing conversation. it's a difficult one for us, like it is for americans all over the country. >> dana: we should watch that again and again to understand where she's coming from. the democrats tried to paint her as somebody who would create this parade of horribles, all the things she was going to do to people who are not like her or people that are underprivileged. i think that today what you saw, this is somebody that you would want is your neighbor and your friend and as your judge. she went out of her way also to say when they try to pin her saying that she was critical of john roberts. she made it clear, she said i don't criticize anybody. i don't attack anybody individually but i talk about their ideas. i criticize ideas and i thought

it was a breath of fresh air. and i learned a ton. i really did. i loved watching it. >> jesse: when she does meet justice roberts it could be a little awkward, the way the democrats tried to pit them against each other. juan williams. very, very intense questioning over obamacare. i think several precedents, she was trying to explain that she would not infuse her own views on obamacare and she would follow precedent and interpret the statute as written the house and senate. how do you think she did? >> juan: it's like her notes, it's a blank slate. she won't say what her opinions are. you don't need notes if you just say you know what, i'm not going to tell you. >> jesse: isn't that what the other liberal justices did during their hearings? >> juan: not all of them. generally we've seen that things have become more polarized.

as justices come before the court, especially the case after robert bork in the late '80s, honest discussion of your policy positions and even things that you've written before, it's very difficult to get out because people think this could be used against me to disqualify me from the court. in the case of amy coney barrett, like on abortion, does anybody have any doubt she's opposed to abortion rights in this country? she signed an ad calling for roe to be overturned. she gave speeches. she's written letters. in some cases she didn't even disclose it, not only to this nomination for previous nominations. it's been discovered now. on the election, jesse, president trump said explicitly he wants her on the court to rule in his favor in case any issues in this election come before the supreme court. to my mind, wow, if obama did something like that, i mean, i can see conservatives screaming

for holy murder. >> jesse: i don't think justice sotomayor or kagan recuse themselves for any issue -- >> juan: i'm talking about the election. we are 20 days away from an election he's putting some on the court saying i'm putting there so that they rule in my favor. >> dana: jesse, if you can play sound bite number three. >> jesse: i think we have it, that the president never discussed it with her. >> i've had no conversations 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 make any such commitment or for me to be asked about that case and how i would rule. i also think he 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. i have made no. commitments to anyone about how i would decide a case. >> juan: but that's the reason trump said he wants her on the court. this is going to damage the court's credibility.

>> jesse: in your opinion. >> juan: no, i'm saying -- >> jesse: they didn't have the deal, the president tweeting has nothing to do with how she's going to act. >> juan: would you say this if this was obama? he would say that the court is so politicized that we as americans can't trust the court. >> jesse: i trust the supreme court. >> dana: shouldn't have tweeted it. the president should not have tweeted that. >> jesse: she handled it perfectly. >> amy coney barrett said my personal views and my religious views are distinct from my duties as a judge on the abortion question and others. she is honoring ruth bader ginsburg. no hints, no forecast, no previews. how many times you want me to say that over and over again? we are talking about her demeanor, i wanted to talk about sheldon whitehouse and the hypocritical monologue or lecture that he had.

not asking her one question. not one. he implied that amy coney barrett is not there because of her compliments, because of her intellect, because of how she slipped her life. but she's there because she's a pond of dark money, hypocrite. you know that also is, that's sexist. let me call him out. barry kept her game face on. he lectured her, not one question. she kept her composure, she showed her incredible fortitude. every woman watching today knows what their reaction would've been. it would've been eye roll, asked me a question! get on with it! they wouldn't have tolerated that but she did and it speaks to her character. i don't have that. i would have lost it. >> dana: [laughs] >> dagen: i thought it was notable that he sat there and lectured her for half an hour. >> juan: dagen, if he says the

federal society has put all these charges, including amy coney barrett on the court through donald trump. >> dagen: let me say one thing about that. the federal society does not endorse or oppose judicial nominees. >> juan: they gave a list of the president. >> dagen: let me finish. i'm speaking. [laughter] sheldon whitehouse refused -- she refused to answer questions in front of verona house judiciary subcommittee about hik money. hypocrite and sexist. >> jesse: how do you think the democrats on the panel have conducted themselves? feinstein, leahy, coons, durbin. >> brian: i feel so einstein, at her age, she goes 3,000 miles

every week to san francisco and back. at her age, unbelievable. she came out strong as the ranking member but the one thing i thought that lindsey graham nailed, he said can i point out that everyone has been polite. not one time have you talked over each other. i think that's what he wanted. that's when he asked for in the beginning. not that they are listening to them but they did. they behaved this way. it's going to be firm and edgy and there's going to be emotion but you can be polite. the world is watching and for once i am watching something and i don't feel like i have to take a shower. i also note that after going through this, the real hits happen after they testify because that's when justice thomas, the whole controversy with him and then of course kavanaugh. he thought he was in the clear and then things came out in between that and the committee vote. having said that, i've never seen so many more confident. keep in mind, ask a former chief of staff of president trump, he's in control of his own tweets. a lot of times people look

around in the communications department and say how do i deal with it? the same way judge barrett is feeling. it doesn't reflect on her. i think we all know the president of the united states, this is how i feel and i want to tell the world. he doesn't necessarily do things like every other president and i think we should stop pretending as if we are surprised when it doesn't happen. >> jesse: yeah, dana, i want to agree with you. i was really blown away by amy coney barrett today. she's got bright eyes. she looks you directly in the eye. she is very clear she's forthcoming but not -- she's not snobby when she uses a lot of legalese that loses you. she was as forthcoming as possible, direct as possible, specific as possible and showed a sense of humor, was poised, articulate. you really can't say enough about how she conducted herself as a professional. i thought, maybe it's been said

before, but the fact that she had her young kids there sitting silently and quietly for that entire time shows you what a good mom she is. >> dana: back to dianne feinstein, asking her, your children are so well behaved. she said i have allies in the back of my head. what i thought was interesting thinking about, we've been talking about the presidential election and how many of the candidates even during the primary are much older. here you have someone, 48 years old, a mother of young children, dealing with things that parents all across america are dealing with. she has seven children. one has special needs and two are adopted, one wants to be a lawyer. another wants to be a writer. she's trying to manage all of this. she talked about having to do remote learning at home and that they would decide, she and her husband, divide and conquer and that's how they were going to get it done. i think i don't even run errands. she's running circles around

everybody. women often ask, can you have it all? no, you can't have it all at once but wow, she can multitask and is so supported by her husband. that to me is a really good thing to see. if we have time, okay. >> jesse: joni ernst is asking questions of amy coney barrett. let's listen. >> a statute in this context, in the context of a chevron type challenge to agencies and the agencies interpretation of it, you would interpret the statute the same way you would interpret any other statute. talking with senator sasse earlier. my own approach would be textualism. my approach to language, the intent of the statute is best expressed through the words. looking at what the words communicate to a skilled user of the language.

>> very good. i appreciate it. we have a little bit of time remaining. i want to thank you. i want to thank your family for lending their support to you through this process. it can be a bit grueling. i do have to say your temperament throughout the entire hearing has been truly commendable. thank you so much. i look forward to working with you further. and with that, mr. chair, i will reserve my time. >> thank you, senator ernst. judge, are you okay to do tomorrow? >> sure. >> senator booker, senator crapo. we will finish up. senator booker. >> thank you, mr. chairman, your honor. >> senator. >> i spoke yesterday and i appreciate the attention you gave me talking about how this is not a normal time. i want to reiterate that one more time as cogently as i can. this is something like we've never seen before in history of

the united states. we are not just days away from election day but people are actually voting right now. close to a million people in my state have already voted at about 10 million people voted nationally. the only other time a supreme court nomination hearing have been this close to an election was as you probably know, under president lincoln. he declined to offer a nomination before the election. we are in the midst of an ongoing election right now at a very contentious time in our democracy. it's probably not normal also because people are already speaking in this election and it seems like we are rushing through this process when many of my colleagues on this committee said four years ago that we should not proceed to fill a vacancy that opened 269 days before an election. in the words of some of my colleagues including the chairman, was to use our words against us, we would not do exactly what we are doing right now. it's also not normal clearly because we are in the middle of

a pandemic. we have tens of thousands of new covid infections and recently day, widespread food insecurity like we haven't seen these kind of food lines in my lifetime i don't think. people across the country are struggling and unfortunately we see that we are right now it not dealing with this crisis. we are instead literally have enclosed the senate virtually and the only proceedings allowed to go forward are not the issues of helping will who are struggling, but dealing with this. it's not normal that we have a president who has repeatedly attacked the legitimacy of our institutions, so much so and i've never seen something like this in my lifetime, that his former cabinet members, former chief of staff all talk about the danger he represents to the country we all love. in fact probably one of the most respected people on both sides fiala, general mattis, who served as the secretary of defense, went as far as to say a

man who's been very reserved in his comments, the donald trump a danger to our democracy. we are at a time that the legitimacy of our institutions are at stake and it's not normal that the president would further cast a shadow over your nomination as well as the independence of the court by saying he would only nominate justices who would tear down roe v. wade, would overturn aca. it's not normal limits this all and again something that i find hard to believe we are talking about, that we have a president who cannot commit himself to the peaceful transfer of power. in the light of this abnormality, most americans think we should wait on your nomination. it's an illegitimate process. most americans think that we should wait. today and i appreciate you not following the news but 90 of your fellow faculty members from notre dame wrote an open letter calling on you, for the sake of our democracy, they didn't speak to whether you are right or left

or your qualifications or philosophy, they wrote an impassioned letter for the sake of our democracy. the publicly issued a statement asking that you pull yourself, withdraw from this nomination process and have a behold until after the november election. this is not normal. the overwhelming majority of americans want to wait but my colleagues here are not listening. and so i'm going to ask you some questions that if you had told me five years ago that would be questions asked at a supreme court nomination hearing, i would've thought they wouldn't be possible. unfortunately i think they are necessary to ask you and i hope that you will give me direct answers. the first one, you've already spoken towards issues of racism and how you deplore it. i want to ask you simply and i imagine you'll give me a short, resolute answer. you condemn white supremacy, correct? >> yes. >> thank you.

i'm glad to see you said that. i wish our president would say that so resolutely. we are at a time that americans are literally fearful because there president cannot do that in a resolute manner. i'm sorry that that question had to be asked at this time. here's another one. do you believe that every president should make a commitment unequivocally and resolutely for the peaceful transfer of power? >> well, senator, that seems to me to be pulling me in a little bit into this question of whether the president has said he would not peacefully leave office. to this extent that it's a political controversy, as a judge i want to stay out of it my don't want to express a view on -- >> judge, i appreciate what you've said about respecting the founding fathers, originalism.

it's remarkable that we are at a place right now that this is becoming a question and a topic. i'm asking you in light of our founding fathers, in light of our traditions, in light that everyone who serves in that office has sworn an oath where they "we are to preserve and protect and defend the constitution of the united states," i'm just asking you. should a president commit themselves, like our founding fathers have the clear intention, like the grace that george washington showed to the peaceful transfer of power. is that something presidents should be able to do? >> one of the beauties of america from the beginning of the republic is that we have had peaceful transfers of power. disappointed voters have accepted the new leaders that come into office. that's not true in every country. i think it is part of the genius of our constitution and the good faith and goodwill of the

american people that we haven't had a situation that's arisen in so many other countries with those issues have been present. >> thank you, your honor. do you think the president has the power to pardon himself or any past or future crimes he may have committed against the united states of america? >> senator booker, that would be a constitutional question. in keeping with my obligation not to give hints previews or forecasts of how i would resolve the case, that's not when i can answer. >> i think i agree with you that it is an issue right now, something i never thought would be an issue before. but it's an issue. that our president may intend to pardon himself or future crimes or past crimes. if a president is personally responsible for several hundred million dollars in debt while he's in office potentially to foreign entities, do you think he has a responsibility to disclose who his lenders are,

especially given the emoluments clause? >> senator, there is litigation about the emoluments clause. i think it was in the fourth circuit. i don't know where it stands but that clearly is an issue being litigated. it's not a case i can offer an opinion. >> thank you. i think it's disturbing we are having this conversation. i think it's disturbingly have a president that has brought what should be settled in the minds of most americans. president should reveal what their debts are especially if they are to foreign nations. president should not be able to pardon themselves for future crimes. presidents should condemn white's primacy. presidents should commit themselves to the peaceful transfer of power. judge barrett, you've a lot -- you seen pictures and stories we've told. i appreciate the way you've listened. it's not a stretch to understand why a lot of americans are afraid right now. all we have to do is look at the statements and actions of my

republican colleagues, republican party platform, and a president who nominated you. even some of your own words which been read by my previous colleagues around the affordable care act. president trump, who nominated you for this vacancy, has not only exquisitely stated that the supreme court should overturn the affordable care act but he promised that he would nominate a judge who would "do the right thing, unlike bush's appointee john roberts on obamacare." the president has tried to do it legislatively, administratively any sale buddies promised over and over again to tear down the affordable care act. meanwhile all of my republican colleagues on the committee except one has voted to overturn the affordable care act because house and senate republicans have tried to do it 70 times. the one republican who did not was an attorney general who join 20 others who sued to overturn the affordable care act. you yourself said and i will

quote you, "chief justice roberts pushed the affordable care act beyond its plausible meaning to save the statute. this quote the same chief justice roberts that trump implied didn't do the right thing. judge barrett, you have said if you are on the court you would hear and consider the argument from both sides. i was very interested when you said that you would put your family members in the shoes of litigants on both sides. given all that you've heard over and over again about the intentions to tear away the affordable care act, given what you've heard about the people who rely on it, given the commitment, president trump said to only appoint judges who would overturn the aca. is it unreasonable for people to fear, putting yourself in the shoes of people, is it

unreasonable for the people that have been up here and there pictures, is it unreasonable for them to fear that the aca would be overturned if you are confirmed to the court? >> senator, i want to stress to you, senator booker, as i am stressed some of your colleagues today that i am my own person. i don't take orders from the executive branch or the legislative branch. >> i understand. can i restate my question? as an act of empathy, can you understand the fears exhibited by the people we put up. the people that i put up, michelle and marek, i don't know what that local party is. i don't know if they are going to vote for me. i am on the ballot. i just know that they are people who want of their voices heard because they're afraid right n now. and what you are nomination represents. all i'm asking is can you empathize with that? can you understand that? >> senator, i can certainly

empathize with people who are struggling. i can empathize with people who lack health care. one of the things that was so striking to me when we went to get our daughter, vivian, from the orphanage in haiti, the lack of access to basic things like antibiotics. it made me appreciate the fact that we have access to health care. i can certainly empathize with all of that. with respect to the aca, should i be confirmed and as i've said i would consider the issue of recusal, threshold question of law and whether to hear that case. should i be confirmed and should i sit and hear the case, as i assured you i would consider all the arguments on both sides. one of the important issues in the case is whether, even if the mandate has become unconstitutional since it was zeroed out, whether it would be consistent with the will of congress for the whole act to fall. it's a statutory question, not a

constitutional one. or whether the mandate could be severed out and the rest of the act stands. so the task of every justice who hears this case will be to look at the structure of the statute and look at its text to determine whether it was the will of congress and passed the aca -- >> judge, i apologized especially after the good behavior that was noted that we shouldn't be talking over each other. my time is running quickly. as a guy who looks at justices, i was asking you to express that you understand the fear that is in america right now. you heard story after story of people who don't know if they're going to be able to afford their health care, don't know if they will be denied insurance coverage. i'm going to move on because of the short time but i was asking, can you understand the fear, giving a president that has said that they will put a justice on that will tear down the

affordable care act, taking away health care for millions of americans. there is fear in our country right now. i want to move to earlier, what senator durbin discussed, asked about your views on racism. i was troubled that you said that racial justice and equality and i'll quote you, "how to tackle the issue of making it better, those things are policy questions." i think that's the quote, how to tackle the issue or of making it better, racial injustice, those things are policy questions. not for the court. the federal government's own data and i think we reference this in our private conversati conversation. you said yo you were familiar wh a lot of the data about the discrimination in the criminal justice system. prosecutors, u.s. census, prosecutors are more likely to charge black defendants with offenses that carry harsh mandatory minimum sentences then

similarly situated whites. are you familiar with that? >> i'm not familiar. >> does it surprise you? >> i don't know, senator booker. that's an odd thing for me to express an opinion. >> these are just facts. >> i'm not familiar with that study. as you and i discussed, i'm aware that there is evidence that there have been studies of systemic racism or implicit bias in the justice system. so i'm aware of that issue. i was not aware -- >> you were aware of evidence that there is implicit racial bias. >> i'm aware there's been studies showing that implicit bias is present in many context including in the criminal justice system. >> okay. i'm going to read some of these other statistics. they are important. this is independent data. black defendants are compared with similarly situated white defendants. on average added ten years to

sentences. you're not familiar with that study? >> i'm not familiar with that study. >> do such cases come before the seventh circuit? >> the three strikes cases? >> yes. >> are you talking about the three strikes, the prison litigation reform act cases where they are struck out? >> cases that relate to racial bias, do they come before the court? >> certainly we have discrimination cases. the 1983 cases, title vii cases. >> in the research for those cases you familiarize yourself with a lot of the data on discrimination in the system. >> we familiarize ourselves with the arguments the parties make any information they put in the record. in some cases i've had parties submit, submitted in the district court and made part of the record. >> i want to be clear. do you believe that there is in fact implicit racial bias in the criminal justice system?

yes or no question. do you believe in fact there is implicit racial bias in the criminal justice system? >> it would be hard to imagine a system as big as ours not having any implicit bias in it. >> is that a yes? >> senator, yes i think that in our large criminal justice system it would be inconceivable that there wasn't some implicit bias. >> okay. over the last two years, about 121 of president trump's traditional nominees have said that there is implicit racial bias in the justice system. quite clearly. i'd like to turn to an opinion you wrote last year about race discrimination. smith versus illinois department of transportation. the case involved an african-american traffic patrol officer who'd been fired from the illinois the illinois department of transportation. the employee claimed he'd been subjected to a hostile work environment. and the supervisor called him the n-word.

you ruled that the employee had failed to make the case that he had been fired in retaliation for his complaints about race discrimination. now you of knowledge that, i'm going to quote you, "the n-word is an egregious racial epithet." you insisted the employee couldn't "win simile by proving that the n-word was uttered at them." then he failed to show that his supervisor's use of the n-word against him "altered the conditions of its employment and created a hostile or abusive working environment. you said based on his own subjective experience this black employee had "no evidence that his supervisors were lashing out at him because he was black." i'm very surprised to have to make this point at all. even a staunch conservative like justice kavanaugh and my questioning of him spoke to the army's harm here in a way that you don't seem to. he wrote in a court of appeals

case that "being called the n-word by supervisor suffices by itself to establish a racially hostile work environment." and you disagreed. why do you believe that the law recognizes the harm inflicted on a black person in this country when they are called that word by their work supervisor, by anyone for that matter. in all the history dredged up and that word. centuries of harm. why do you believe differently than justice kavanaugh? >> senator booker, that opinion does not take a position different than justice kavanaugh. was written very carefully to leave open the possibility that one use of that word would be sufficient to make a hostile work environment claim. the problem was that in that case the evidence that the plaintiff had relied on to establish a hostile work environment involved -- he was driving the wrong way down a ramp and then expletives were used, not the n-word.

the n-word was used after his termination had already begun. he didn't argue under clear supreme court speed. i didn't make up the objective-subjective element. both are required. he didn't say that it altered the terms. that's not how he pled or made his case and it was a unanimous panel decision. >> forgive me if i'm reading this case wrong. you are saying to me he was not claiming that he has a hostile work environment and it was a fact pattern that the supervisor called him the n-word and that does not constitute a hostile work environment and the way justice kavanaugh said clearly it does. >> no, senator, i think you're mischaracterizing what i said with all respect. in that opinion the evidence that he introduced to show the hostile work environment was the use of expletives when he drove the wrong way down. he was hired to be safety driver for the illinois department of transportation. he based his hostile work

environment claim on the use of expletives at him based on poor work performance. that was what he relied upon. and then his termination proceedings have begun. he didn't tie the use of the n-word into the evidence and he introduced for his hostile work environment claim. so as a panel we were constrained to decide based on the case the plaintiff had presented before us. the panel very carefully wrote the opinion to make clear that it was possible for one use of the n-word to be enough to establish a hostile work environment claim if it were pled that way. >> i'm going to turn to the autozone case that you discussed earlier. the initial panel of three judges examine the case ruling against kevin stuckey. you are not part of the initial panel but you had an opportunity to vote on whether to hear the case before the entire card. you had an opportunity to affirm the bedrock principle in trying to -- enshrined in boar brown vs

board of education. you didn't think the full court needed to examine the deliberate segregation of employees by race. judges disagreed with you. three judges explained we know deliberate racial segregation by its very nature has an adverse effect on the people subject to it. on one of the central teachings of brown versus board of education which i know you're familiar with is the idea of separate being inherently unequal. why did you think that the separate but equal facilities were lawful or why didn't you see this as a practice that was worthy of closer scrutiny? >> senator, as i said earlier to senator feinstein, i did not make a merits decision on that case i wasn't on the initial panel. the calculation of whether to take a case on banc is different than a merits determination. it wasn't reaching any decision about whether a title vii

applied to that situation or not. federal rules of appellate procedures. 35 governs on banc proceeding sets out standards and this case didn't create an interest circuit conflict. so i didn't think it meant -- all my vote means is that i didn't feel like it satisfied the elevated high standard for on banc review, not that i thought it was correct. there's a lot of deference to panels in my court. >> three judges disagreed with you. they saw the case as compelling. they thought the issue deserved closer scrutiny and you had an opportunity to join them but you didn't. you referred earlier to the problem of implicit show bias in our system, the idea that despite the color of your skin people can get a hearing. people can get justice. this denial seems to me that you disagree with the prioritization at least of your three

colleagues. >> a senator, eight of my colleagues chose not to take the case on banc. the on banc process is a different one than the merits decision making process. to decide that case on the merits and know whether i would come out the same way i would've had to participate in it and read the briefs and hear the arguments. >> so the three justices were wrong and you disagreed with your colleagues? >> the three judges who dissented, the three colleagues who i respect very much thought it met the standard for the on banc review. it's different than the merits. i did disagree about whether to take it on banc. i was in the group of eight colleagues this decided it would be an issue we could take up in the future but not then. it was not a merits determination. >> thank you, your honor. moving quickly, judge barrett, five years ago the supreme court ruled the constitution protects the right for same-sex couples to marry, the obergefell case.

the court declared constitution grants lgbtq americans equal dignity in the eyes of the law. on that day five years ago the court fulfilled that ideal of equal justice under the law. now the same-sex marriage is a legal weed seed efforts to undermine it. justice ginsburg wrote about legal rules that would "create two kinds of marriage, full marriage and skim milk marriage." i don't believe the law should discriminate people on the basis of who they are. i want to offer you a further opportunity to address the issue that i don't think you got to fully address that my calling brought up when you use the term sexual preference earlier today rather than sexual orientation. is there a difference in what is it? >> senator, and using that word, i really did not mean to imply that i think that, you know, that it's a -- not a matter of,

that it's not an immutable characteristic or that is solely a matter of preference. i honestly do not mean any offense by that. >> immutable characteristic. that one's sexuality is not a preference. it's who they are. is that what you're saying question work >> senator i'm saying i was not trying to make any comment on it. i fully respect the rights of the lgbt community. obergefell follows an important precedent of the court. i reject any kind of discrimination on any sort of basis. >> the obergefell decision. what about alito and thomas who have said that the court has created a problem that only it can fix. they clearly don't see that as a precedent with following. >you just said obergefell is a precedent. >> of course obergefell is a precedent and it's an important precedent as he pointed out

there are reliant interests in obergefell as to why justices alito and thomas have called for its overruling in the recent opinion that that they issued, i can't really speak -- >> they call it a problem. do you know what they are referring to? >> senator booker, i don't know what justices thomas and alito were thinking. you'd have to ask them. >> we are seeing cases where americans are being denied social security benefits. a couple in arizona was together for 43 years and got married and one of them died. the surviving spouse is being denied benefits. they weren't married long enough after 43 years together in love. does this violate the rule of equal treatment that the supreme court has laid down? >> in obergefell? could you repeat the facts? >> they were together for 43 years. the law allow them to marry. they married and one died soon after and they are being denied survivor benefits because they weren't married long enough.

the law are wrongfully denied them that equality. >> it's a legal question that would have to come up and be decided in the context of a real case. obergefell recognizes the full rights of same-sex couples to marry but the question of what are the implications of that for benefits would be something that would come up before a court later. >> there are some precedents. can a hairdresser refused to serve interracial couples weddings because they disapprove of interracial marriages? >> loving versus virginia found directly from brown and it makes unconstitutional any attempt to prohibit or forbid interracial marriage. >> could they refused to serve a black couple's wedding? >> could have baker or florist refuse -- title vii prohibits any sort of discrimination on the basis of race by places of public accommodation. >> how about interfaith wedding? >> senator, i feel like you are

taking me down a road of hypotheticals that's going to get me into trouble here because as you know i can't opine on how cases would be resolved. i have said that whether they are easy questions are hard questions. i can't do that. >> i'm not the lawyer that you are but you seem to honor the precedents. protecting african-americans, interracial couples but you stop on saying that unequivocally about people stopping on religious discrimination or against a muslim couple's wedding or interfaith wedding. >> senator, what title vii says as i'm sure you know, title vii prohibits discrimination on the basis of race come on the basis of, all i can do is say refer to the statute. as to whether they are be evidence to show any particular encounter between a customer and a florist or baker violated title vii, that would be a case

they would have to come up, as i discussed with senator sasse, real litigants litigated on a full record. you're asking a series of hypotheticals. >> i'm assuming you will not respond for the same reasons you've ordered before. you will not respond about whether a forest can refuse to serve a same-sex couple. >> it sounds like you're on your way to talking about masterpiece cake shop and some of the cases that are hotly contested and winding their way through the courts. i want to make sure i'm not a physician or i'm eliciting views that would bear a litigation that's active. >> i guess you can understand, if we go back to the question both i and senator hirono asked you about what you've said you didn't mean to offend about whether it's a choice or not. at the immutable characteristics of an individual, like their race. i want to close by saying the story of some folks in my home

community of new jersey. emily and jan. they've been together for 51 years. they raised three children. at last count and that's a good way of putting it, they have 18 grandchildren and 20 great-grandchildren. you know how families are. for a long time they had to keep the relationship and their love a secret. finally once same-sex marriage became legal, they got married and thanks to the spring court's decision on obergefell they can enjoy their full rights. judge barrett, you're asking the united states senate to agree to have you replaced justice ginsburg which would tilt the balance of the court further to the right. remember that it was justice ginsburg who warned against full marriage for some couples and skim milk marriage for others. like so many couples in new jersey and around the country, emily and jan are worried about what might happen if the supreme court starts to peel back some of their hard-fought rights. they believe their love should be valued by their government and equally as the love of any

other people. they believe a lot of the rights they now enjoy which were denied in the past to african-americans even comment interracial couples, they believe they should be able to preserve them. and so my time is expired. you've been very generous as has the charm and allowing me to go over. i'm grateful to have the opportunity to talk with you more tomorrow. >> thank you, senator booker. >> jesse: senator booker asking pointed questions about race and same-sex to amy coney barrett. juan williams, you heard the senator ask amy coney barrett who has two adopted black children if she condemns white supremacy. obviously he knows the answer to that question. why do you think he asked that question? >> juan: because president trump had such trouble with it. >> jesse: did he have trouble with it? >> juan: terrible trouble with it.

>> jesse: amy coney barrett, two adopted black children. >> juan: i heard you. i'm glad she said what she said. she is to be saluted for being direct. the president if you will recall, could not be direct. this is the power of what we just saw from senator booker. he said that president trump in fact has cast a shadow over her nomination. a lot of times we want to say it's about her but no, in so many ways it's about the process. it's about the fact that republicans blocked merrick garland and they are forcing this through in a rushed manner. it's about the fact that she has not only a record but she has expressly said what she thinks about abortion, what she think about the health care act. when you have this moment, senator booker says given president trump saying he wants somebody on the court to decide the election, tell us what you think about the constitution that says that there should be a peaceful transfer of power. that's why you got to ask these questions. it's not about her. it's about the process which is

illegitimate. a >> jesse: dagen mcdowell. >> dagen: not about president trump today or even tomorrow. this is about amy coney barrett. say her name with me. she's a woman we've seen today of incredible compassion, intellect, and faith. she's a woman dedicated to family, church, community, country and the law. senator booker tipped his hat, he said your colleagues lito and thomas. so we know how this going to end. she will be on the high court. >> jesse: dana, the senator mentioned a petition that would come out from notre dame where she taught for many, many years. you are telling us in the break about the petition. >> dana: it's a letter signed by 77 professors at notre dame, none of which are in the law school. one of which teaches medieval studies. saying that they object. you've seen this kind of thing before.

nice try but that letter is not going to have any effect. i also think that democrats understand that she will be confirmed. she's unflappable. she's become more comfortable i think in the last nine hours. she listens intently. she doesn't fidget. she doesn't doodle. i think that tomorrow's hearing, i think the senators will be glad they only have 20 minutes rather than 30 because this thing is over. >> jesse: final thoughts. >> brian: senator booker did his homework, i appreciate the line of questioning. i give them back. do you have empathy for people who are suffering? absolutely. what does it have to do with this? i understand how you feel, juan, should she be there and should the space be filled but i think that ship has sailed. does she belong there? keep the trauma questions out of it. don't pose them to her. she has carried them for 20 hours. why waste your precious time by bringing up what you don't like about president trump? >> jesse: i don't think they think it's a waste of time. i think they think it's the most

potent use of time because they know that it's live on cable and networks. get the shot in. >> juan: senator graham's opening statement. >> jesse: politicians are politicians. what can we say? that's it for us. "special report" is up next with bret. >> bret: good evening, welcome to washington. i'm bret baier. amy coney barrett is vowing to bring no agenda to the bench should she get confirmed. senators continue at this moment to question barrett on a variety of hot button issues. we are monitoring the hearing for any news, we will turn around those sound bites and they are about to take a break shortly during our show. today's questioning, obviously, more confrontational than monday's opening statements but nowhere near the composition for supreme court justice we heard on capitol hill.