severability and law and feinstein said i'm impressed and went forward. >> sandra: we'll see you this afternoon, bill. that does it for is, harris faulkner will take you through the next few hours. >> the confirmation hearing for judge amy coney barrett is set to resume in just a few minutes from now. they said 12:30 p.m. eastern. it is the third day of hearings. the second straight day that judge barrett is fielding questions from senators. you are watching special coverage. i'm harris faulkner. senate jude i shall naer committee chairman lindsey graham said he would be confirmed and the democrats pressed her on a affordable care act. shannon bream is inside the hearing room. during that break we can talk with her and shannon, you know,

hearing senator ted cruz wrap up moments ago he talked about the issues he would like to see senators and people on the hill and people at the state level deal with. mentioned the affordable care act and a few other things. what's the significance of him making that point? >> you've heard judge barrett say that's how this should work. if you are going to legislate do it here in the senate or across the street in the house. that's done there is a totally different job for the judicial branch. she's hammered on that repeatedly in these three days of hearings

>> harris: >> one more thing having to do with what we know is looming ahead of us. we would think that maybe the u.s. supreme court would weigh in on something like this. the asking of would you recuse yourself if it came down to an election decision, her answer was really interesting. it hasn't happened. what was your take on it? >> shannon: to me it's very interesting this call that started with senator cory booker, once we had the nominee, talking the recusal. they have repeatedly brought this up. senator coons pushed this yesterday. saying we know the president is ramming you through so you will be there on the court and can decide this election for him. she has had very professional responses to these things but she said a number of times i would hope that this body, this committee would see my integrity and i would not be used as a

pawn to decide the election for someone. it raises the question as well f. you're going to say that about her, i keep saying why not about justices gorsuch and kavanaugh. does it not make sense you would say is the president has these other two people he appointed, why shouldn't they recuse as well? she's done a good job answering questions being brought to her from her testimony yesterday. and we always expect they'll do that. they go through the transcripts trying to find things to press her on. we've gone back repeatedly to the affordable care act. you can see she's a professor. we've been talking about this case coming to the supreme court in a few weeks about whether one part of the law can survive, the affordable care act. she talked about the game of jenga, which we all know. she said that's what judges are supposed to do, try to see how they can save the law as

congress constructed it, if that one piece comes out. that's something a professor would be thinking that way >> harris: or somebody with a teenager like myself. it was really something that resonated. you know you're busy in your life you need to break it down. shannon bream thank you very much for being in the hearing room and coming out and talking with me for a short bit. i want to bring in bret baier. senator cruz wrapped up the first few hours today of the questioning with a couple of what i thought were 37,000 foot headlines want the one of them was well we know for sure that judge barrett is going to be confirmed. and then it got political. that's where i come to you to teach us what this really means. he said well know at this how few democrats there are in the room compared to yesterday. what was he getting at?

>> bret: you know harris i don't know what he was getting at. some of the senators have chosen to listen in from their offices. maybe he thinks it's about grand standing versus dealing with this confirmation hearing. don't know. obviously kamala harris the vice-presidential nominee made her decision based on her concern about the room and concern about the situation of moving forward under the cdc guidelines. i do want to say that, listen, this is the second day in which judge barrett is very well prepared, in exchange with senator lee, she's mentioning 600 cases. he points to a specific case and she says i think i remember it and then goes into detail about the specifics of that case. which is pretty at ton in additioning. i think the exchange with senator durbin back and forth was pretty strong, as far as his substantive questions. and he said that her answers stained original his many and she came back and said if i was

to answer it, it would strain article 3 and the judicial conduct that was set up under ruth bader ginsburg in her testimony. >> harris: right. yeah it was interesting to see some of that back and forth. and you know, again, kind of a joke made today by one of the senators, that you know she doesn't need her notes in order to do this. judge barrett said that the constitution contains provisions that prohibit discrimination on race and gender. i bring that up, we have a little bit of the hearing, because that was a back and forth with dick durbin. let's watch. >> when asked whether or not the president has any authority to unilaterally deny that right to vote for a person based on race or gender, are you saying you can't answer that question? senator i just referenced the 14th and 15th amendment that do prohibit discrimination on

the basis of race and voting. so as i said, i don't know how else i can say it, the constitution contains provisions that prohibit discrimination on the basis of race and voting. >> harris: bret? >> bret: basically she's saying i can tell you what's in the law right now. i can't tell you what potentially i would do as a justice on the supreme court. and that's, you know, standard in the answers. and basically democrats are trying to and republicans i should point out tried to with justice kagan and sotomayor tried to ask questions that get around that stipulation. of bottom line is the votes are here. it doesn't seem there's any bombshell that's going to change the dynamics. the most of this at least on the democratic side and some on the republican side is about 20 days to the election. and you know making sure people see the importance. >> harris: you talk about where the votes are right now. and i brought that one

particular section up because you know senator ted cruz, to go back to what he says, he said look maybe some of those democrats are not here because they've run out of the questions that really can show a reason not to confirm judge amy coney barrett. it is a really, really interesting, different kind of a day today than yesterday. i'll give you last word on that. >> bret: i think so. i think it will go quicker. some senators won't take their full amount of time and hemmer rightly pointed out that if it goes as expected right now they could have a vote on this committee tomorrow night. and that's a big, big deal as far as timing. and you know just remember last time brett kavanaugh, this part of the hearing went roughly fine, it was contentious but the big bombshells came out afterwards. again it does not appear like that is in the offing >> harris: bret baier thank you for your time. i'm going to slide in the anchor of the story, martha maccallum.

martha i want to start with you. there was an exchange by vermont senator leahy. i want to watch that and then get your reaction an academic doesn't go through the judicial process, doesn't hear the case or controversy, have the litigants and briefs and consultation with colleagues, the righting of opinions -- >> we all understand that but that's not my question. my question was did you ever write or speak out in defense of the aca whether as an academic or as one of the judiciary? that's a pretty simple question, it can be answered yes or no no, i have never had occasion to speak on a policy question. >> thank you. >> harris: martha it was an interesting exchange. what's your take? >> marie: there again we have the back and forth.

the party from the opposition party for lack of a better way of putting it tries to needle and pin them down on issues that they think they might lean against them on. and so he was pressing her on the healthcare act which is one of the major themes that we've seen over the course of the last several days. there is obviously a great concern on the part of democrats that that issue coming before the court on november 10th, which deals with one very slim factor of the aca which is the issue of severability, whether or not having removed the individual mandate obligation of that law leaves it still standing? which she so artfully explained with the janga rule, which we'll image in our minds when we think of severability. she very deftly explains she has not dealt with that issue as a

judge. she did make a prominent comment on the outcome of the prior aca case with regards to justice roberts and how he handled it. she was in the minority of how she viewed that outcome and she felt he had stretched the meaning of the legislation itself beyond its natural place. so, i would just say one other thing, if i may. go back to that interesting moment from lindsey graham at the top, here. just for everybody who is watching this from a historic sense, harris, this is the first time we have seen a woman who has been nominated by a conservative, by a republican president sins sandra day oh conor, so the impact on that is significant. all young women, myself growing up, we all watched ruth bader ginsburg, we all watched kagan and sotomayor go through the paces of these processes. the and we're proud of them as women coming on to the court. this is a new situation that we haven't seen in a long time. lindsey graham pointed out this

is a real glass shattering moment for her as a younger woman, and that she is unat shamedly pro-life. he said she's setting an example for women like her across the country, many of whom i think have felt they were not part of a larger women's movement. she represents something very different and she's obviously an incredibly intelligent woman who has a very, very full life and certainly has found a way to have it all, which so many of us try to do. >> >> harris: the mom of seven, god bless her. you point to the issue that i want to get to about the job of democrats in this room is today and joining by virtual, however they're participating. senator ted cruz made much more of that. but there was push back on no, they still are, for covid reasons there are not as many democrats in the room. their job has to be made more complicated by going after this woman. there's already been criticism outside this hearing room about,

look, don't touch the faith, don't mom shame. do all of that, because it is about the issues and had her ability to adjudicate. but she's making history at the same time she is. you know i almost felt that some of the references to her family were, you know, at some point it becomes, i don't know how to put it harris and i don't know how it strikes you but it's a little bit much at some points, i think. because you want her -- she's sitting at that table because of her accomplishments. she's sitting at the table because she is perhaps one of the smartest judges in the land. she seems to be sort of dancing around pretty much everybody on that committee and doing it all without notes as we have noted. and i don't think if it were a man in her position who had a family, that he probably drove around in a minivan on the weekend that anyone would be mentioning any of that at all. so i do think there's still a bit of -- a little bit of a

double standard for how men and women who are raising their families together as most people do across this country, the woman is sort of talked to a little bit differently about that. which i would point out as interesting >> harris: by the way that is not you and me saying the quiet part out loud. that's just the truth. we can shout that if we wanted to, but we won't, we're polite. martha maccallum, thanks for joining us thank you >> harris: i want to bring in dana perino. i don't know if you could hear martha and i talking about the semantics of doing this with this hearing and democrats looking at this history making moment for a conservative woman the first nominated sins sandra day o'connor. still having their batch of questions and not making it personal. joe biden said many don't make it personal. how are they doing? >> dana: in the context of how are they doing?

it's how is she doing? she's a skilled witness, absolutely unflappable. i would love to take a walk inside her brain and look around. it's incredible to think she has this detail of recall of cases she heard from years ago. we all know she's a great professor, great teacher. but she also seems to have an intellect that is far and above anything that i've seen in awhile. i think the democrats must feel like they just need to get this hearing behind them. they're probably glad that senator graham is on a pace to have this vote tomorrow night. i'm sure they would like to get out there and talk about something else. if you think about three of the republican senators in very tough battle ground races for their reelection, senator graham, that race is tight. senator tillis in north carolina has a new lease on life because his democratic opponent has i

section scandal that is leading the news in that state and senator joni ernst. all three are participating in this hearing because this is what their constituents want them in washington, to work on these issues and to have the judiciary represented by a more conservative or center right type of person that shares original his many in terms of the judicial philosophy. i the point out that instead of campaigning they think their highest and best use right now is being here in these tough races as a part of these hearings >> harris: real quickly, we have and, i would love for you just to talk about it, if we can. we have a woman here who has -- this is the third day. each day has brought with it a different set of challenges, each day we have learned she sits there without her notes and answers, so on and so forth. how much is she, no matter what

politics, how much is she changing a little bit of the future? or is that too far a reach? listening to you and martha, i'm not a mom so i don't have that same experience, but i respect it so much and i love to learn from my friends who are moms. but i would also say this about her, harris, do you notice she doesn't apologize for her success. >> harris: she does not. women can often do that. they can try to be overly humble or have -- show a lot of humility because you think that may people will like you more. but she's not like that. and i thought how refreshing. when you think about her as a role model for women off whatever ideology, i don't care about the ideology. you watch somebody at this level not apologize for her success as a mom and her success as a lawyer and professor and now associate justice of the supreme court, i think she is a really wonderful example of that for

all of us. we can take a queue from her >> harris: it's interesting what you're saying. as women we tend to do that, even when it's not our job, our responsibility to do that, she's not doing that not at all >> harris: dana perino, 5:00 pm eastern on the five. see you then. some of the biggest legal minds on the planet are coming up next, ken star, andrew mccarthy, all after a very short commercial break. say close.

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ken starr i'm coming to you first want there have been moments sins the beginning of the week when it looked like contention was the name of the day.

do you get the sentenced to this is coming to an end evening possibly voting tomorrow? what is your take on this? i think it's going well for judge barrett. she is so reassuring. she's obviously enormously competent. she's getting very high marx. fi beta cap tax a+ for her performance inside the hearing room. grades are also coming in, i'm not talking about poles, i'm talking about substantive grades from outside the hearing room. senator mike lee made the comment about the congressional research service, their analysis of her entire body of work showed a very able open minded judge. example? the fourth amendment protection of us all against unreasonable searches and season us is viable. it's not had much play but it did in this survey that showed in case off case you don't know

how she's going to come out. in the best sense of the word. sometimes law enforcement wins. sometimes the criminal defendant wins. that's the sign of a good judge, an honest judge who takes each case as it comes. >> harris: i want to bring in now jonathan turley. jonathan you're hearing ken starr saying this is not about polling these are the substantive grades of people outside this hearing room and what they are looking at in terms of who she would be in a courtroom. who would she be jonathan for america? as you look at the -- at what the u.s. supreme court decides, the cases before it. what goes before a potential judge barrett where you say, yep, that's going to be potentially her imprint on this? well you know what's funny harris, the person she reminds me most of in a confirmation hearing is ruth bader ginsburg. of they're very similar. they both were top of their law

school classes, both started as law professors, writing in the area of rights. both widely respects, they had divergent views. they also both came to the court fully formed. these are not works in progress. these two women have very deep understands of jurisprudence. you saw that in the exchange with durbin. that was with -- the exchange with durbin are going to be the highlight of these hearings. it really is in contrast to his colleagues. durbin raised legitimate issues and has been skillful and she's been very skillful in response as opposed to sent sent booker asking can you be empathetic or senator hirono saying have you sexually assaulted someone? if you look at the durbin barrett exchanges they're high points and they give very good marx for what they said. by the way, how the of these exchanges come enlightening

issues. today clearly judge barrett indicated she's not comfortable with the application of the international law as controlling authority of the united states. she sounded very much like her mentor, justice scalia in responding to that question. >> harris: jonathan, as i did with ken starr i'm going to ask you to stand by. if we have time i want to bring you all three back on the screen. andy mccarthy. in your days progress you know what questions will turn up the type of issue. on the issue of severability judge barrett weighed in and she kind of schooled sent certainty senator feinstein. can we show that? i think the doctrine of severability as it's been described by the court, you know, serves as valuable function of trying not to undo your work when you wouldn't want a court to undo your work.

search built strives to look at a statute as a whole and say would congress have considered this as survive able, kind of like the jenga game, it tries to effectuate the court and congress working hand and hand. >> thank you, that's quite a definition. i'm really impressed >> harris: diane feinstein really impressed. while that make headlines today? it already was. social media lit up the moment she said it yeah harris, remember chairman graham started out with severability before senator feinstein got to it. and i think the point here, is that this is the big push back to what the democratic position has been throughout the hearing. i think they've recognized from the beginning and it's certainly clear to me, i think what john and ken said is absolutely true about this, we're looking at a nominee who is going to be on the supreme court.

they know that. they've used this hearing really to address the election three weeks from now rather than to go after amy coney barrett. and what they've gone after her on is this idea that the trump administration is trying to get the affordable care act thrown out. the severability legal issue is the push back to that. and as we've said a number of times at least a number of us, i don't think there is any chance that the supreme court is going to throw out the affordable care act in toto and the reason you can say that with confidence is because of the severability doctrine. that's why it was important for her to spell it out. >> harris: so interesting. i had requested my team bring all three of you gentlemen back on the screen to do a quick lightning round. ken starr i'll start with you, the take aways from what america sees inside this hearing, this hearing room are what in your

estimation? enough votes potentially to get confirmation. when you say in toto, what did we see this week? we saw a philosophy of judges are not legislators. how many times have we heard that over and over again? so much of what the american people want is for judges to do exactly that. and what judge barrett has said to america, has said to us that's not my job. school choice as an example, senator cruz said i don't want you to mandate school choice even though i think it's very important. that's not your job. feel this is amy coney barrett saying i will stay in my lane as a judge and allow democracy to work. >> harris: we saw senator graham and others filing back into that hearing room, with short time, jonathan turley what is the take away for you? i think the take away is that she's doing a magnificent

job, the rocky balboa of nominees. the last round for a he lat confirmation she hitter with everything but a chair and it didn't work. you see her keeping out of their reach. when she has crossed swords with someone very smart like senator durbin she's held her own. as ken said she has stayed tethered to this principle that she's not going to give any hints or fore shadowing of how they would rule. she wants to make clear however she rules it will be because she believes it's the right thing to do >> harris: andy mccarthy, we're seeing things come together, judge ache ache has arrived on the other side of that, even the challenging questions that were put very ably by senator durbin he treated amy barrett like she is going to be

on the court. even sheldon whitehouse in his aggressive questioning he was asking her please take this knowledge i'm giving you and this issue to the court with you when you get there. there's no question she will be there. >> harris: gentlemen, thank you for joining me. now the confirmation hearing, day three for judge amy coney barrett continues. let's watch. >> we are in the middle of the election, and people are voting. and yet here we are stuck in a nomination hearing. i know what my constituents care about, what they've been calling and writing me about. that is they are afraid of losing their healthcare in the middle of the panned panned. people's lives depend on the if affordable care act like steve a senior from tower minnesota who has a heart condition and relies on his prescription medication. emily from minneapolis, mom diagnosed with breast cancer.

janet janette whose brother has ale mental illness or a daughter with a tumor. that is on the line, healthcare is on the line. judge, that's what is on the line in your nomination hearing, which unfortunately has been plopped in the middle of this election. this morning you had i would call it an academic discussion with chairman graham about the doctrine of severability. that's about if you can uphold part of a statute but throw out another part of it. and you correctly said there was a presumption to save the statute if possible. so i want to be really clear with the american people. that the trump administration, this is a position of the trump administrati administration, filed by the trump justice department says that the entire affordable care act must fall. that is the position of the

trump administration. going into this case that's going before the supreme court in a few weeks. judge you clerked at the supreme court. does the justice department brief that they have filed represent the administration's and therefore the president's position before the supreme court? the solicitor general is the government's advocate before the court. yes that would represent the united states. >> right. if the brief didn't represent the president's position he would have the solace store general and the justice department withdraw the brief. is that right? i believe so, yes. >> okay. i just wanted to make that clear to the chairman and to everyone out there, that while there is a doctrine to separate stuff and try to uphold part of the statute like maybe preexisting conditions are doing something about keeping your kids on the insurance, the position of the trump administration is to throw the whole thing out. the second thing i want to make clear is that is you've been nominated to the highest court

in the land and you will be the deciding vote in many cases that will affect people's lives. and i appreciated that you've said it's not the law of amy, it's not your law, but the point is, is that you will be in a really important position. i think that's one of the reasons that they're trying to tram through this process right now. and while you're not saying how you're going to rule on cases, as i said yesterday i've been following the tracks and the only way for the american people to figure out how you might rule is to follow your record, and to follow the tracks. we know this. you said you consider justice scalia one of the most conservative judges in our nation's history as a mentor. you criticized the decision written by justice roberts upholding the affordable care act. in a 2015npr interview you praised justice scalia in another affordable care act case saying the dissent had the better of the legal argument. you signed your name to a public

statement featuring an ad that called for the barbaric legacy of roe v wade, the 1973 supreme court decision. long standing court rulings on nge the balance of this court, which is already 5-4, and known as very conservative, 6-3. 6-3. and that would have great repercussions to the american people. so i wanted to follow-up on something that senator harris and i asked you about yesterday. whether or not you understood the president's clear position on the affordable care act before you wrote the article in which you criticized the legal reas reasoning for upholding the affordable care act? the president tweeted just one

day after you were nominated, september 27th that it would be a big win if the supreme court strikes down the health law. but before you were nominated and this is what we showed yesterday, donald trump tweeted, promising that his judicial appoint want will do the right thing on obamacare. unlike justice roberts. yesterday you were asked by senator harris, prior to your nomination were you aware president trump's statements committing to nominate judges who will strike down the affordable care act? you said i can't really definitively give you a yes or no answer. what i would like to to say is i don't recall hearing about or seeing such statements. after she followed up, you said that the tweet wasn't something that i heard or saw directly by reading it myself. okay. so i just want to go through some of the things that have happened over the last few

years. regarding the president's obsession to repeal obamacare. he said we will repeal and replace disastrous obamacare, when accepting the republican nomination at the republican convention, did you see that? in 2016 i'm not asking if you were there, i'm asking if you saw it on t.v. no, i don't believe i watched any of the convention on t.v. if i did, i don't remember any of it. >> he said he wants to immediately repeal and replace the disaster known as obamacare. he has said he wants to get rid of it. he has said in states of the union i'm calling on congress to repeal it. he said can you believe that mitch mcconnell couldn't get it done? there have literally been hundreds of statements my him

and my colleagues and i find it hard to understand that you were not aware of the president's statements i am aware that the president opposes the affordable care act. i'm aware that he has criticized the affordable care act. i took senator harris's question yesterday to be referring to specific tweets, maybe the one that you have behind you, about how he wanted to put a justice on the court to replace obamacare. and i'm definitely aware of that tweet now. and as i said to senator harris yesterday, it came up in some of my calls with democratic senators brought it up. but i honestly can't remember whether i knew about it before i was nominated or not. i'm not sure. >> but did you have then a general understanding that one of the president's campaign promises was to repeal the affordable care act when you were nominated? i, as i said before, i'm aware that the president opposes the affordable care act.

>> well i know you're aware now. were you aware back then? well it seems. >> when you were nominated. well senator klobuchar, i think that the republicans have kind of made that clear, in the public discourse. >> is the answer yes then, that you were aware? senator klobuchar all these questions you're suggesting that i have an animus or i cut a deal with the president and i was very clear yesterday that isn't what happened. >> were you general away of the president's statements when you wrote in a law school journal in 2017, the same year that you became a 7th circuit judge that he pushed the affordable care act beyond it's plausible meaning to save the statute that justice roberts had done that? were you aware of the president's statements when you wrote that article? that article senator harris told me yesterday was published in january of 2017. the law review article takes

several months to go into production. so i can't remember specifically when the conference was. that article came out of a conference, randy barnett's book. i can't remember what it was, but i suspect it was before the election. it's not that i wrote it in january 2017. >> president trump was saying this in 2015, 2016, that's two years, it didn't take you that long to write the article. my question is simply were you aware of president trump's opposition to the affordable care act during that time? senator klobuchar i have no idea and i suspect that if the article was published in january that i wrote it sometimes before the presidency shall election. and again, i want to stress i have no an imus to or agenda to the in order ford, your suggestion that this was an open letter to president trump, it was not. >> okay. in the 2017 university of minnesota law school journal one of the things you said is there

is a risk that a faction will constrict courts into helping them win battles they have already lost fair and square. is that something you wrote in that article? i did. i was responding to an argument made by randy barnett in a book, i don't know if it was the lost constitution or not. >> that is what i am afraid has happened. they have tried 70 times the republicans in congress to over turn obamacare. now they're bringing this case to the court and you are going to be sitting on the court. and i find it very hard to believe that you did not understand that when you wrote the article. so i want to -- there's one other piece of this and that is the effect on the economy, and we all know this has been very difficult, my colleagues know this. according to one yelp study 30

million people are out of work at the height of the panned panned. pandemic, we've seen more and more consolidation. leading me to antitrust. part of this i think is the covid relief package we have to pass but also antitrust. competition is the driving force of our economy. justice ginsburg in her nomination hearing described the sherman act as a broad charter. she said free enterprise, the spirit of the antitrust laws and the courts construe statutes in accord with the essential meaning that congress had for passing them. do you agree with her statement? the sherman act is broadly worded, you know, insofar as it prevents contacts, restraint of trade, and because that language is broad courts have developed a

robust doctrine of common law to enforce and bring about its promise of eliminating contracts, conspiracies and combinations that restrain trade. >> i think you and i have discussed this before. in recent years supreme court opinions by the way all decided over justice ginsburg's dissent have maiden forcing an tie trust laws even more difficult. how would you reconcile the broad language of the sherman man act with recent judicial press republican precedent that has narrowed the application of the statute in practice? let's see, i can say as a text you'll lift how i would approach the sherman act. in the case of the sherman act you're right, that is broad language. the text of the sherman act as the court has determined over time essentially permits the court to develop a common law. so i haven't really had occasion to decide very many antitrust cases on the 7th circuit. but it's an area because it's

largely been left to judicial development but is controlled by precedent for the most part. >> it is. that's my concern. right now it's been so narrowed in its interpretation of the sherman act, clayton act, that it's almost become impossible for people to bring those cases in any big way. i want to turn to something we talked about yesterday, which is elections. you worked on the re count in florida, that was related to the bush v gore case, including on an absentee ballot issue on behalf of the republican side of that case; is that right? i did work on bush v gore, i did work on behalf of the republican side. to be totally honest, i can't remember what piece of the case it was. >> don't worry, i'm not going to ask you that. okay. >> we're in the middle feel a global pandemic that is forcing voters to choose between their health and their vote. our absentee bol lots, better known as mail in ballots an

essential way to voters to vote right now? that's a matter of policy that i can't express a view. >> to me that seems like a fundamental pardon of our democracy. let's try this. have you ever voted by mail? i can't recall a time that i voted by mail. it may be in college that i did, when i was living away from home. but i can't as i'm sitting here specifically recall a time that i voted by mail. >> do you have friends or family that have voted by mail or are voting by mail? i have had friends and fami family vote by mail. >> you understand we're in a time the president is undermining voting by mail even though a number of republican governors and senators are in fair of it. back to your earlier work, bush v gore hurt the court's

legitimacy. if you are confirmed the supreme court will have not one, not two, but three justices, you, justice kavanaugh and chief justice roberts who worked on behalf of the republican party in matters related to the bush v gore case. do you think that's a coincidence? senator klobuchar if you're asking me whether i was nominated for this seat because i worked on bush versus gore for a short period of time as an associate that doesn't make sense to me. >> i think it's such a coincidence do me. i actually didn't know it until yesterday. will having justices with this background, two of whom are appointed by the current president decide any cases relating to the upcoming election, do you think that will undermine the legitimacy of the court? asking whether something would undermine the legitimacy of the court or not seems to be trying to elicit whether it

would be appropriate to sit on the case whether than recuse and i went down that path. >> you said you wouldn't recuse. i that isn't what i said. >> you're right, you said you would announce your decision on recusal and you wouldn't commit to recusing. i think the public has a right to know that now three of these justices have worked on the republican side on a major issue related to a presidential election. . one thing i wanted to revisit, smiley v home. the reason i asked about that is that this would be unpress dented when we right now are in an unpress dented time where we have a president who refuses to commit to a peaceful transfer of power working to undermine the integrity of this election. and yesterday you wouldn't commit to recuse yourself from the case, we just talked about. but now we're considering your confirmation to the highest

court in the land in the midst of this election. in smiley the supreme court held the governor is part of the legislative process and a legislative cannot change election rules that could be important because we have a number of swing states where we have legislature one party governor of the other. and we have this precedent that has been on the books for nearly 90 years. do you think that that is established supreme court precedent? that a governor is part of the legislative process snfrmths i actually am not familiar with that case. but it is president dent -- obviously the precedent of the court. >> okay. i wanted to turn to one last issue. first amendment and freedom of the press, near and dear to my heart. my dad was a journalist, he would go everywhere for a good story and cared a lot about f e freedom of the press. it's under assault, we have

witnessed unpress dented attacks on journal lifts and journalism in the past years. our president uses his twitter the account to attack news organizations, accused the news of being fake news and called them the enemy of the people. we have journal lifts over seals under attack. i want to pay tribute to the journal lifts, journal lists like journal lifts like jamal and the men and women of the capital gazette. fear will not silence facts. the founders recognize a free press is fundamental to a strong democracy and we need supreme your justices who understand the importance of protecting the right of journal lifts. you know the support of the

first amendment support protecti protecting jurn lifts. justice thomas has expressed skepticism with that case, writing in concurrence with mcgee that if the constitution does not require public figures to just identify, then neither should we. do you agree with justice thomas that the court should reconsider the actual malice standard because it is inconsistent with the original meaning of the constitution? senator klobuchar i can't express a view on either case or justice thomas's critique of it without violating that i've repeatedly stated that all nominees follow, i can't comment on matters or litigation that the court has already decided. >> i want to ask you about now journalists have been deterred.

many federal courts of appeals have recognized the reporter's privilege which protects the reporter's first amendment right. the 7th circuit by the way on which you serve has rejected a constitutional basis for reporter's privilege. many under its original public meaning does the first amendment protect a reporter's decision to protect a confidential source? again that would be eliciting a legal conclusion from me, it's a question that you point out closely being litigated. >> do you agree with reporters cannot protect their sources they're less likely to be able to find confidential witnesses willing to share information, confidential informers willing to share information about public importance? senator that would both be a policy question, which i can't express a view on, and you know

one that might factor into the question of what the first amendment protects. again that's not something i can give an opinion on in this context. >> okay. my last thing i will say is i hope people watching out there are going to follow the tracks of this record and are gonna vote. thank you. >> thank you. senator sasse thank you chairman. welcome back, judge barrett. let's start with how judges should look back on their career at the end of it. so if you are confirmed, 30 or 40 years from now when you hang up your robe and sit on a front porch in south bend probably with a big gag of grand kids around you, how will you judge whether or not you had a successful career as a judge and justice? i would judge whether or not i have had a successful cree by whether i acted with integrity, whether i always followed the rule of law and resisted the

temptation to twist it in the direction i wanted it to go. whether i have treated my colleagues with collegiality. whether i had mentored, helped and had good relationships with my clerks and any assistants or staff that we had, i think the law and the people are important. >> how would that differ from how will a senator should look back on his or her career after hopefully not 30 or 40 years in my view, but 12 would be a good limit in my view. i probably can't say how a senator himself or herself would. i would say as a citizen howie might evaluate the senator's career, did he pursue good policy? sponsor or vote for legislation that advanced the cause of the common good in the united states? >> so i think when you corrected my question so that you didn't even pretend it was a hypothetical where you saw yourself as a senator, i heard

today young and mike young had a huge gasp of relief at the thought that you're not going to be running for senate. i think it's clear from our conversations over the last few days that a number of us who are excited about your originalism and who believe the job of a judge is very different from the job of a poll ly sir maker don't think that polling has any place in the questions before us at this point. but it is sort of hard to sit here after three days and here claims made over and over again about how much the american people are opposed to you or whatever. so even though polling should have no place, just as a matter of correcting the record, i did happen to look up this morning, the american people are overwhelmingly in favor of your confirmation. just sins this record seems to have been distorted sorted with

the fact that the american people are opposed to you. it's overwhelmingly in your favor, plus 17. any way, certainly don't want you to comment on that. i would like to transfer to your write wgz. you're a prolific writer. justice breyer is the only one sitting on the court that i can see looks like he's written more than you have. he has a few decades of extra time as an adult writing relative to you. how will you pick venues, topics, audiences? what will you write about as a justice? . >> again presuming confirmation. yes i would say, you know, most of my writing was during my time as a full-time law professor. the only thing i have published, i think, sins being confirmed to the bench, i published a lecture i gave a case western and edited a transcript of remarks that i gave on a panel.

but it wasn't a full length article. i found frankly it's hard to manage all the demands of family life, the job and writing the kind of scholarly jobs that i had in the past. if i'm confirmed to the supreme court i would like to do more of that but more in the vein of say what justice breyer does now. or what my colleague, judge frank easterbrook does which is writing to educate about ideas. justice oh conor's program where she really set herself out to teach high school students and people in america will civics and how the civics process works. i would see myself trying to reach more general audiences. if i have time once my kids get a little older maybe i will dip back into scholarly writing

again. >> that's helpful. >> speaker2: i think it would be useful if we had justices who did more of that civics education. you've named a few. i think there are others over the last 30 or 40 years who have done a lot of public civics education. i differ with former chairman grassley about whether cameras would be a good idea. i'm glad we get the audio transcripts and we have a lot of press that cover the court. i think we would get a lot more michael avenatti nonsense if we had cameras. we don't have as much theatrics from those arguing before the court. more cameras in the court i think is a bad idea. more justices before the public explaining the structure of our constitutional system would be a huge asset. given your history with notre dame students and law it students it seems like a natural fit for you. for what it's worth i think you have a lot of people who would

encourage you to take up that civic calling. >> to tackle a few constitutional structures for our popular audience can you explain what the 9th amendment is about? why do we have it well it's often treated as a rule of interpretation. there's not a lot of substantive doctrine under it. it's preserving the rights -- that the individual's rights are preserved. that those not expressly granted aren't taken away. >> and if we may be broaden it from just the 9th amendment to the bill of rights in general, why do we have one and what would be different in our constitutional structure if we didn't have the bill of rights? if we didn't have a bill of rights we wouldn't have particular rights singled out for special protection. as i'm sure you know, senator, the bill of rights was added in 1791 because during the debate about the ratification of the original constitution many

states objected to the fact that there was no bill of rights. the original idea when the constitution -- the original constitution, by that i mean beginning with article one, moving up, was that the very structure of government protective rights and there wasn't a need to have a bill of rights because it was thought that the separation of powers and the structure of federalism would be a protection for those rights. those that wanted protection the bill of rights prevailed, james madison drafted them and they were ratified in 1791. >> i mean to layout a hypothesis, is it fair to say most governments in human history have had a default assumption of prohibition, government's can do whatever they want and citizens don't have rights until governments give them rights. you don't have freedom of religion in most governments

across time and space, and the american -- freedom is the default. people are created in the image of god with inalienable rights, and the government has to have specifically enumerated powers. we will the congress have to authorize article two branch, the executive branch to go ahead and do anything. if they don't have those authorities they can't do anything unless congress gives them the freedom and the people's default assumption is freedom. our it system is to flip the hist