10/14/20 10/14/20 [captioning made possible by democracy now!] amy: f from new york, this is democrcracy now! >> so judge, my first question, do youou think we shouldld takea president at his word when he says his nominee will do the right thing and overturn the affordable care act? hon. barrett: i can't really speak to what the president has said on twitter. he hasn't said any of that to me. amy: supreme court justice nominee amy coney barrett faced

11 hours of questioning as republicans race to confirm her prior to election day. on tuesday, barrett refused to answer questions about the affordable care act, roe v. wade, voting rights, and even if president trump could delay the election or refuse to transfer power peacefully was a vice presidential nominee senator kamala harriss took k part in ne questioning. periscope and a 200006, youou sn your name to an advertisement published in the tribune that describes roe v. wade as "an exercise of raw judicial powere" and calllls for putting "any and to the barbaric roe v. wade." amy: we will air excerpts and speak to dahlia lithwick, the supreme court reporter for slate.com. and we will talk to yalele law profofessor samuel m moyn abouot "making the supreme court safe for democracy." all that and more, coming up.

welcome to democracy now!, democracynow.org, ththe quaranae report.. i'm amamy goodman. coronavirurus cases are surgingo new highs in communities across the e united s states asas fall weather sets in, w with over 54,000 new infections repoported tuesday and d 20 states reaching record h highs for the d diseas. oklahomaity officis say they've run o of intense re beds. bismarcknorth dako, report has jusa single icu bed remaing. d six mar hospits in miissippi ve no ic capaty. official, there have en more than16,000 dths from covid-19n the u., but new sty ihe "jourl of americanedicalssociaon" edicts uto 400,0 excess deathsn the uned statethis year. this ces as "t washingn po" and "n york tis" report tt trump ministraon ficials ve adopt a polic deliberely lettg the vis infect much of t u.s.

pulalati in order attain herdmmununit health experts warn the strategy might nonot even be possible and could lead to more than 2 million u.s. deaths. in geneva, switzerland, the head of the world health organization said monday that herd immunity should only be reached through vaccination, not natural infection.n. >> herd immunity is achieved by protecting people from a virus, not by exposing them to it. -- hasn the history of herd immunity been used as a strategy for responding to any ououtbreak, let alolone a pande. it is scientifically a and educationanally problematic. amy: barely a week after he was released from walter reed hospital where he was treated for covid-19, president trump continues to hold packed campaign rallies where masks are rarely worn and social

distancing is not observed. on tuesday, president trump rallied supporters in johnstown, pennsylvania. he's planning a rally in des moines, iowa, today -- a state experiencing record high hospitalization rate. meanwhile, the labor department admitted late tuesday that the wife of labor secretary eugene scalia has covid-19. trish scalia hasn't said when she first tested positive. she was seated next to presidential adviser kellyanne conway at the now-infamous superspreader event at the white house rose garden on september 26. kellyanne conway is covid-positive. the white house has refused to carry out contact tracing on its outbreak. a crowdsourced covid-19 data tracker has identified 39 positive coronavirus cases linked to the white house, including the president and the first lady. pharmaceutical g giant eli lilly has suspenended clinicalal triaf its monoclonal antibody y drug over an unspspecified d potentil safefety concern.

president trump p touteded a sir drug produced by regeneron as a cure for covid-19 after he received a dose while hospitalized at walter reed medical center earlier this month. both eli lilly and regeneron have applied for emergency use authorizations of their antibody therapies. supreme courtt nominee amy coney barrett was back on capitol hill tuesday for a second day of confirmation hearings. during 11 hours of questioning, barrett repeatedly refused to say how she would rule on several key issues -- from abortion to health care to voting rights. she also declined to say whether she would recuse herself if the outcome of the 2020 election is decided by the supreme court. we will have the latest on judge barrett's nomination after heheadlines. an fbi agent testified tuesday members of a far right anti-government t group charged with plotting to kidnap michigan governor gretchen whitmer also planned to target virginia's

democratic governor ralph northam. members of the so-called wolverine watchmen were reportedly angered by governor northam's lockdown measures aimed at slowing the spread of coronavirus. in richmond, virginia, northam blamed president trump's rhetoric for inciting far-right violence. >> these threats are not coming in this rhetoric is not coming from another country. it is coming from washington. and that i regret. and it needs to stop. amy: as coronavirus lockdownss remained in effect last april, president trump tweeted -- "liberate virginia, and save your great 2nd amendment. it is under siege!" trump tweeted "liberate michigan" that same day. in w washington state, m more eyewitnesses have stepped forward to corroborate claims that police made no attempt to arrest the antifascist activist michael rangel on september 3 before they killed him in a hail of gunfire. all but one of 22 eyewitnesses

interviewed by "the new york times" report police did not identify themselves or give them any commands before opening fire. five of the witnesses said officers began shooting the instant their unmarked vehicles converged on my whole, who reportedly wish i dead as he chewed on candy, clutching a cell phone in one hand and a bag and the other. president trump previously called the shooting retribution after the man allegedly killed a far right trump supporter in portland, oregon. on tuesday, trump raised the case again during his campaign rally in pennsylvania. pres. trump: two days went by, three days went by. i said, why haven't they arrested him? they knew who he was sent in that u.s. marshals. in 15 minutes, that was the end of it. that was the end of it. amy: at tuesday's rally, president trump also it held to suburban white women voters, boasting he would repealed fair housing regulations introduced by president obama meant to expand low-income housing

opportunities in the suburbs. pres. trump: i ask you to do me a favor. suburban women, will you please like me? please. please. neighborhood,damn ok? amy: t t trump admdministrationn has been ramping up subsisidieso farmers ahead of election day, as payments arare projected d to reach a record $46 billion this year. farmers have been hit hard by trump's ongoing trade disputes with china and europe, as well as the coronavirus pandemic. ken cook of the environmental working group said -- "this is an authoritarian power grab used to buy political support from voters who are essential to his re-election." supreme court ruled tuesday the trump administration can order the census bureau to halt its 2020 count a month early. dealing a major blow to civil rights groups. advocates say the decision will lead to a vast undercount of immigrants and communities of color, with huge implications for voting rights and the fair allocation of federal funds.

in a lone dissent, justice sonya sotomayor wrote -- "the harms caused by rushing this year's census count are irreparable. and respondents will suffer their lasting impact for at least the next 10 years." in virginia,a, a cablele that ws allegegedly cut by accident caud the e state's entitire online vr registration to crcrash for hous tuesday, on the deadline to register to vote in virginia before election day. voting rights activists condemned state election officials for the malfunction, warning it likely left thousands of eligible voters unable to register. a similar error happened in 2016. there is now a lawsuit that will be heard in court today to extend the deadline. on tuesday, early voting got underway in texas with massive crowds waiting in line for hours, similar scenes playing out in georgia monday as early voting got underway there. meanwhile, a federal court in texas upheld a a directivey

republicanan governor greg abbot limiting ballot drop box sites to one per county -- including harris county, home to 4.5 million people, a disproportionate numumber of whm are democratic voters. california's republican party has admitted to deceiving voters by placing dozens of falsely labeled drop boxes for mail-in ballots in los angeles, fresno, and orange counties. california's secretary of state has sent cease-andnd-desist ords to republican officials warning anyone distributing phony mail-in ballot boxes could be subject to criminal prosecution. in immigraration newews, over 10 asasylum seeeekers from cacamern were deported en masasse tuesday afternoon, despite congressional intervention and efforts from activists who held an action at the fort worth alliance airport in texas to try to stop the deportation flights. among those deported were several leaders of a hunger strike at pine prairie detention center in louisiana and two

cameroonian women who fear they were unknowingly subjected to forced sterilizations at irwin detention center in georgia. immigration rights groups say ice agen c coerc t the alum ekers into gngningheir deportatn n orde after months ofororturend abuse the ylumum sker said d they were held isolitary connement after r joining hunger sikikes. many of them fear they will be killed upon their arrival into camero.. is i is e of t t asylum seekers speaking from an i prison. hat ke on givi us torture. [indiscernrnible] amy: t t mexicanovernmensays it h identntied at least two women who may have been suected to invasiv necologil l surgies witht

their coent whilimimprised at irwinetentionenter in gegia. one of t women rortedly ys she waoperatedn withou receivg an expnation othe procure or h medical diagnosis in spanishsh. "the w wall street journal" reports u.s. border security agents working in guatemala detained and deported a group of honduran asylum seekers in an unauthorized operation last january. u.s. customs and border protection agents are stationed across latin america to train local authorities in u.s. immigration and border enenforcement tactics. but the state department prohibits them from engaging in any direct immigration enforcement operations in foreign countries. the recent findings were published by democrats in the senate foreign relations committee, who say this is the first known case of u.s. agents involved in the physical deportation of asylum seekers in a foreign country. a federal l prosecutor has found no evidencnce of wrongdog g in n investigation into allegations that former obama administration officials illegally unmasked the

names of americans whose communications were swept up in foreign surveillance. attorney general william barr order the investigation after president trump and some accusedan lawmakers obama of conspiracy.y. no report t has been issued. and in belarus, government officials have threatened to kill anti-government protesters, saying police are allowed to shoot dissenters with livee ammunition. this comes as mass mobilizations continue to demand new elections, after long-time authoritarian president alexander lukashenko claimed victory in a poll that opponents say was rigged. pensioners joined the protests monday as demands mounted for lukashenko's resignation. >> it hurts me the authorities are doing god knows what to our children. i want our children to have a say, to have rights. they must be able to protect themselves. i want us to have a new, free

election and for political prisoners to be freed. amy: t this comes asas the euron union onon monday agreed to pose sanctions personally targeting president lukashenenko. and d those are some of the headadlines. this is democracy now!,, democracynow.org, the quarantine report. i am amy goodmdman in new yorkr, joineded by my cohost juan gonzalez frorom new jersey. juan: welcome to all of our listeners and viviewers from around the country and around the world. amy: supupreme court jusustice nominee amy coney barrett faced questions for about 11 hoursrs n tuesday as republicans raised to confirm her to a lifetime seat on the supreme court prior to election day, which could give her a chance to take part in oral arguments in a critical case on the affordable care act scheduled for november 10. it barrett is confirmed in time, she could also be a deciding vote if the supreme court is

asked to hear a dispute over the presidential election. democrats say the supreme court seat left open by the death of ruth bader ginsburg should be filled by whoever wins the presidential election since early voting has already begun. over 10 million people have voted. in 2016, senate republicans refused to hold confirmamation hearings for presisident obama's pick to replace the late antonin scalia on the court since it was anan electioion year. amy coney barrett is a conservative judge who once clerked for scalia, who she has described as a mentor. if confirmed, the 4848-year-olod barrrrett would give conservatis a 6-3 majority. on tuesday, barrett refused to pledge to recuse herself in an election case when questioned by democratic senator chris coons of delaware. sen. coons: given what president trump said, given the rushed

context of this confirmation, will you commit to recusing herself from any case arising from a dispute in the presidential election results three weeks from now? hon. barrett: i would consider it, but i thoroughly hope all members of the committee have more confidence in my integrity and to think that i would allow myself to be used as a pawn to decide this election for the american people. so that would be on the question of actual bias. what i will commit to every member of this committee, to the rest of the senate, into to the american people, is that i will consider all factors that are relevant to that question. relevant to that question that requires recusal when there is an appearance of bias most of amy: amy coney barrett refused to say whether president should commit to a peaceful transfer of power. her comments came during a series o of questions from democratic senator cory booker of new jersey. sen. booker: i imagine you will give me a short and resolute answer, but you can him white

supremacy, correct? hon. barrett: yes. sen. booker: do you bebelieve every president should make a commitment unequivocally and resolutely to the peaceful transfer of power? senator,ett: well, that seems to me to be pulling me in a little bit into this question of whether the president has said that he would not peacefully leave office. to the extent this is a political controversy right now, as a judge, i want to stay out of it and i don't want to express a view -- sen. booker: do think the power -- president has the power to pardon suffer any past or future crimes he may have committed against united states of america? hon. barrett: senator booker, that would be a constitutional question. in keeping with my obligation not to give is forecast of how i would resolve the case, that is not when i can answer.

amy: before senator booker questioned judge barrett's, earlier in the hearing, senator dianne feinstein of california asked her if trump could legally delay the election. trumpeinstein: president made claims of voter fraud and suggested he wanted to delay the upcoming election. does the constitution gives the president of the united states the authority to unilaterally delay a general election under any circumstances? does federal law? if. barrett: well, senator, that question ever came before me, i would need to hear andndnts frfrom lititigants read briefs andonsult w with my law clerks and talk with my colleagues and go through the opinion writing process. so if i give off the cuff answers, then i would be basically a legal pundit, and i don't think we want judges to be legal pundits. i think we want judges to approach cases thoughtfully and with an open mind.

amy: democratic senator amy klobuchar of minnesota asked her about the legality of voterr intimidation. sen. klobuchar: last week a contractor from outside my state of minnesota started recruiting poll watchers with special forces experience. to protect polling locations in my state. this was clear voter intimidation. similar efforts are going on around the country, solicited by president trump's false claims of massive voter fraud. as a result of his claims, people are trying to get poll watchers, special forces people to go to the polls. judge barrett, under federal law, is it illegal to intimidate voters at the polls? hon. barrett: senator klobuchar, i can't characterize the fence in a hypothetical situation and i can not apply the law to hypothetical set of facts. i can only decide cases as ththy come to be litigated by the parties on a full record after fully engaging precedent,

talking to colleagues, writing an opinion. so i can't answer questions like that. sen. klobuchar: i will make it easier, it is s outline anyone o intimidates my friends, or courses or attttempts to intimidate him and threaten, or course any other person for the purpose of interfering with the right of such other persons. this is a law that is been on the books for decades. do you think a reasonable person would feel intimidated by the president -- presence of armed civilian groups at the polls? hon. barrett: senator klobuchar, that is eliciting -- i'm not sure whether it is a legal opinion, because reasonable person standard as you note is more common in the law, just an opinion a as a citizen, but it s not sosomething r really that is appropriate for me to comment on. amy:y: senator amy klobuchar ququestionining judge e amy cony barrett. after dinner break, democratic vice presidential nominee senator kamala harris focused part of her time to barrett's past comments attacking the

supreme court's decision on roe v. wadade. harris co. you sign your name to -- describing roe v. wade as "an exercise of raw judicial power" and cacalls for puputting "an eo the barbaric legacy of roe v. wade." you sendnd a similarar add in 23 "infamous"bes roe as and expressed opposition to abortion. also in 2013, you wrote an article about supreme court precedent in whichch you would have wrote from a list of well-settled caseses that you sd "no justice would overrulule evn if she disagrees." suggesting of course you believe roe is acceptable to being overturned. on the 40th anniversary o of ro, you delivered a speech when she said the court's recognition of

the right to choose would "create through judea judicial -- judicial fiat rather than the constitution." during her tenure on the seventh circuit cocourt of appeaeal, you have been willing to reconsider abortion restrictitions that otr republican appointed judges count unconstitutioional -- foud unconstitutional. as the senate considers filling the seat of justice ruth bader ginsburg who in her confirmation heararing to say the right to to wowomen'sessentiall equality"" i would suggest we nt pretend that we e don't k know w ththis nominee views a woman's right to choose to pick her own health care decisions. amy: vice presidential nominee similar, hararris was questionig judge amy coney barrett for hers and it -- from her senate office, projected into the

sesenate judiciary committee susupreme courtrt confirmation hearings due to covid concerns all stop earlier in the hearing, vermont democratic senator patrick leahy asked barrett about her view on in vitro fertilization. agree with do you ivfsponsor of the ad that is tantamount to manslaughter? hon. barrett:'s editor, i signed a statement that you and i have just discussed, and you're right, st. joseph county right to life ran an ad on the next page, but i did not think the ivf view you are expressing was on that page. regardless, i've never expressed a view on it. democratic senator sheldon whitehouse opted not to ask your in questions on tuesday. instead, he gave a 30-miminute

presentationon on how w right-wg groups incluluding the federalit society and jujudicial cririsis network have used dark money to reshape the nation's judiciary. senator whitehouse: this is a pretty big deal. i've not seen this on any court i've been involved with, where there is this much dark money and this much influence being used. here's how "the e washinington " sumsms it up. this is a conservative activist the junta seems campaign to remake the nation's arts and it is a to underer $50 million dark moneneyperation.. amy: when we come e back, we wil speak t to dahlia l lithwick, te supreme court reporter fofor slate.e.com. stay with us. ♪ [ [music break]

amy: "west bound and down" by jerry reed. this is s democracy y now!, democracacynow.org, the quarante report. i'm amy y goodman.n. with juan gononzalez asas

we continue our look at how supreme court justice nomininee judge amy coney barrett faced questions forr about 1 11 hoursn tuesday as republicans raceded o confirm her before election day. she repeatedly refused too address numerous issues from abortion to affordable caree act to voting rights. for more, we're joined by dahlia lithwick, their senior legal correspondent and supreme court reporter for slate.com, where her latest piece is headlined "don't expect a 'gotcha' momenet in the barrett hearings." i was wondering if you could start off by talking about -- there may not have had a gotcha moment but from everything to refusing to comment on president delaying the election, refusing to talk about the transfer of power peacefully? explain what stood out for you most. >> that actually was really

striking to me. it seemed a c costless concessin for her to simply say, of course, every president has to see to transfer power, of course whole watchers into a dating minorities is a crime. thosose all seemed easy answers for her. and i think she did herself no favors. she is trying, she outlined, to present herself as neutral, and open book, whatever she was before, whatever she rolled on the page is immaterial. every issue will be approached with an open mind. but i think your exact right. there are some issues that don't need to be approached with an open mind. and a president who is hell-bent on suppressing the vote and who has already said he wants her on court in order to "count ballots" because he thinks mail-in ballots are all

fraudulent. she could have allayed a lot of fears by simply saying, none of those things that he is doing to disturb democracy itself, to undermine the integrity of the election itself -- none of those are in question. there are not reasonable arguments to talk about with my >>. so i think that she made the call to look as though every issue could come before her, so she is not going to opine. i think what she ended up doing was terrifying a lot of people who don't think that these are open questions. ,,an: dahlia lilithwick specificallyly, she refuseded ty whether she would abstain fromm taking part t in any presidentil elecection dispute if it t endep in t the supreme couourt. your take on that exchange? >> i think she's got it exactly wrong. i think she tried to flick at this when she said actually buys as opposed to the appearance of

impropriety. the statandard in the e canons,e etethic rule, is not "are you actually biaiased? " it is do you presumptively given appearance of propriety? and if that is the case, you don't do it. i think she kept going back thte well of, look, i did not make any promises to ththe president. nobody from the white house asked me to put a thumb on this go for the president. that is s not the standard. the standard is, does this look imimproper? the fact i think the majority of americans dodon't even wanant ts hehearing to happen whihile votg is taking place, tells you there are some since this is improper, that she should not be handpicked by the president who says he wants her to throw the election t to him.. whether or not she's had that conversation with him is immaterial. , itess in some ways, juan goes back to amy's question is, which she has these simple

things you can do to simply allay that t her sitting g on a case like this would be e impror and that at every turn, insteadd of allaying the fears, she throws herself into this guys of neutrality that just further police conversation. juan: several of the rerepublicn members of the judiciary cocommittee kept talking aboutue great record of judge barrett. lindsey graham at one poinint sd thatat she was "one of the greatest pix president trump could make for the suprememe court.t." record ---ment t of her shshe has been on the apappeatae but inor three years, terms of f her actualal experere with the federal courtrts, comparared say t to sonia sotomr who had decades of expxperiences a lower court judgoror even

ththurgood marshall l or ruth br ofsburg who h had long records arguing before the supreme court. could you put her credentials in context to other nominees? >> sure. i think republicans on the committee when faced with the fact she has only had three yearars of judicial experience d before that chiefly academic experience, which back to, oh, elena kagan did not have that much more experience. so i think it is a valid critique. i thinink the frframers had intd that judges amass a real professional career. but i think it i is fair to say ththere have beeeen justices, ad elena kagan i is one of them, wo did not have decade-longng cares on t the bench the way say jusue sotomayor or hahas. ththe isissue is not so much tht is to ththe very brief record, t is also that record is incredibly revealing.

that in case after case in a very s short time on the third circuit, she has reached unbelievablyly conservative results in cases that have to deal with asylum-seekers, cases with prisonener abuse, cases tht haveve to do wh h workerss r ris -- certainly, as kamala harris suggested and her questioning, to cases that hahad to do with abortion rights. so i think she has a very, very consistent extremely conservative record on the federal bench. so when you hear her being lauded as she is neutral, this is balls and strikes, she is anotother john roberts, open minded about everything, never mind what she said in all the years before, her advocacy andd speeches. even if you only confined or scrutiny for the three years she spent on the federal bench, this is consistent anti-worker, ananti-reproductive rights, anti-immigrant -- i could go on. this is not a neutral record.

that is why i think they are betting her as a legal prodigy and a giant is that she is boom, boom, boom, right on the booook, very much more i can do clarence thomas and samuel alito than to anybody that approaches things i really neutrtrally with an open mind. anand because e some say when ne was the appellate -- whwhen she became the appellate court judge, she was actualllly takina stolen seat of a woman who was in a indiana state supreme court judge, nominated by president obama to be the first african-american appellate judge in that area, but at that time, koch denied for that and then the democratic senator allolowed amy y coney barrett's nomination to move forward. >> yeah, no,o, i thinknk what we saying in the aggregate, amy, is

just d decades of "constitutionl hardball." we are saying mitch mcconnell's view of the federal bencnch as s placing his football in a maximalist use of imagery techchnique, what you're describing is the blulues list that allowowed home state senats to keep seseats open and in some cases, years and years rather than let obama fill them. that is why all of these vacancies existed when donald trump took over. they got rid of the blue slip so people were mashed onto the courts over objecting home state senators. that is why there was a seat in fact intended by obama to go to thee first -- what would have been the first african-american woman to serve in that seat. she wasn't even given the courtesy of hearings. she was nott given the courtesy of a vote. that seat was held open andnd evenentually filled by judge barrett. amy: i want to go back to the

hearing to illinois senator dick durbin, who questioned amy coney barrett about the implications of her dissesent from the majory opinion on a second amendment challenge from rickey kanter, a wisconsin man barred from possessing a firearm after he was found guilty o of felony mal -- of a felony. questionin: there is a of whether it is because fives you from voting. this -- disqualifies you from voting. one of out of every 30 black americans have lost their runways. in were dissent, said disqualifying person from voting because of the simple -- because of a felony is ok. but when it comes to possession of farmsms -- wait a minute, w'e talking about the individual right of a second amendment. what we're talking about and voting is a civic right, community right, however you define it. i don't get it. shouldre saying a felony

not disqualify ricky from buying an ak-47, but using a felony conviction, someone's past to deny them the right to vote, is all right? hon. barrett: senator, what i said was the constitution contemplates that states have the freedom to deprive felons of the right to vote if expressed in the constitutional text. but expressed no view on whether that was a good idea, whether states should do that. sen. durbin: did you not distinguish the second memberer right from the right to vote mccauley one an individual right under the constitution and the other a civic right? hon. barrett: that is consistent with the link which any historical context. the way the brief described it. it was part of the dispute in heller of whether the second amendment was an individual right for a civic one that was possessed collectively for the sake of the common good. and everybody was treating voting as one of the civic rights. sen. durbin: i will tell you, the conclusion of this is hard to swallow.

the notion that mr. cantor, after all that he did, should not even slow down when n he isn his way to buy a firearm. amy: that is dick durbin, the democratic senator from i illins questitioning judgdge barrett. dahlia lithwhwick, the significance of this? in the bucket of cases where i describe judge barrett going way beyond what settled law is. that is a good exaxample. disrupts,ler case she justice scalia f found for the first time an individual right to bear armrms under the second amendment. that is not a thing that has been understood to be the case for centuries as she had suggested. that is something that was kind of invented on the fly in the heller case. so she locates that as this fundamenental divisional right. as you say, she then downgrades the right to vote as something that is lesser, civic right. the other thing that is really important is that justice scalia

had no problem with takingng awy guns from felons in heller itself. many, many states have those laws. so she went beyond even what her mentor justice scalia would have done in the heller case and starts to call into question state laws that do not allow ifmer felons to have weapons , in her view, they are nonviolent. just an example of this long practice she had in a short time on the seventh circuit of nudging, nudging, nudging the laws even further than it existed, and then dressing it up as some kind of clear, originalist, obvious step. where in fact, it is very much what i think conservatives would call judicicial activism. of her being issue an originalist or a textutualis, isisn't ththis the argument t oe scalia followers of originalism

ln which of the constitution iss key butut irrespective of t thet that at the time of f the constitution was written, there wain essence minority rule under the united states? therere was not a clear democra. so your sense of the importance or textualism isis the basis of supposedldly nonpartitisan judicial decisisi? >> i think originalism and textualism, original public meaning as justice scalia describe it are all constitutional modes of interpretation that are dressed up as humble, neutral, mechanical. we inputted into the machine, look in a dictionary, contemporaneous destination of what -- definition of what the framers meant and that is the answer. you're right. undergirding that, there is a

presumptption, particularly with the original drivers of the constitution, they were thinking interns i equality and dignity for everyone. we know presumptively that was a document that was privileging m male lady wealth owners. that was the intention. i think it is a little bit fatuous to pretend hey, they had the answers to things like veto fertilization and marriage equality, but more urgently, there is a lot of language even in the original document that was deliberately vague. what is equal protection of the law mean? what is due process? what is cruel and unusual punishment mean? those were diligently left open by the framers of the future generations could poor contemporaneous meaning into it. i think it is a bit of a shell game. it is a way of pretending to be neutral and to be fair and judicially modest. in fact, there is always going to b be a heavy, heavy t thumb n the scale in favor of powerful

and those who have the greatest voice. it is the antithesis of what ruth bader ginsburg did. she devoted her career to looking out for the voiceless and the powerless. this is a way of reifified the powerful and the very much represented, often at the expense of the vast majority of people who do not have a voice. amy: very quickly, o on the isse of her signing a petition saying abortion -- talking about the barbaric legacy of abortion? and also, as senator lahey pointed out, thehe letter she signed talking about ivf as tantamount, that i is in vitroro fertilization, tantamount to manslaughter? >> this is a worry. again, i think she w wted to hold herself out as summit he

will come to this with an open mind regardless s of her activi. i think it is a very good way to make a poioint that a lot of trp appointees don't stop at abortion. there is any objection to contraception, to ivf, even to surrogacy. and the line we think is the roe v. wade line is not at all the line. it starts a lot earlier. and i think we need to be mindful of the ways this is slipped into the discourse the possibly surrogacy and ivf are on the chopping block. amy: let's follow them in trouble. sheldon whitehouse of rhode island did not use his time to question barrett, but to discuss the role of dark money i in politics. essentially a half-hour tutorial. this is an excerpt. sen. whitehouse: there's big anonymous money behind various lanes of activity. one lane of activities through the conduit of the federalist society. it i is managed -- was manage by guy named leonard leo and has taken over the selection of

judicial nominees. how do we know that to be the case? because trump has said so over and over again. his white house counsel said so. so we have an anomalously funded group controlling judicial selection run by the sky leonard leo. then in another lane, we have again anonymous funders running something througugh the judicicl crisis network, which is run byy carrrrie severino, and it is dog pr and campaign ads for republican judicial nominees. $17 million donation in the garland-gorsuch contestst ad another single $17 million to support cavanaugh. somebody, perhrhaps the same person, spent $35 m million to influence the makeup of the united states supreme court. tell me that is good.

over here, you have a whole array of legal groups also funded by dark money comes w whh have a different role. they bring cases to the word. they d don't windheir wayayo the court, y your honor,r, they get shoved to the court by these legal groups, many of which asked to lose below so they can quickly move up to get their business done. and then they turn up in a chorus, and orchestrated course of anarchy. this to me is a pretty big deal. i've never seen this around any court that i have ever been involved with. where there is this much dark money and this much influence being used. here's how the "washingtonon po" ended up. thisis is a conservative activit fantasies campaign to remake the nation scored and it is a $250 million dark money operation. and because that is democratic senator sheldon whitehouse of rhode island who will be joining us later in the week stop he will be questioning judge

barrett today. he really talked about the issues of same-sex marriage, affordable care act, abortion, that while they may be carried out, it is really corporate power that the corporations want to prereserve. dahlia lithwick, we have 30 seconds. >> i thought he put on a master class. everybody should watch that 30 minute discussion. none of it is new. he hasas been saying it for a lg time. jay mayor chronicled it in her book. i think it answers the question why a tiny mininority of use are so outsized representative of the court. amy: thank you so much for joining us, dahlia lithwick, legal correspondent and supreme senior legal correspondent and supreme court reporter for slate.com. her latest piece "don't expect a 'gotcha' moment in the barrett hearings." next up, we speak withth yale lw professor samuel moyn about his

proposal t to make the supreme court safe for democracy. ♪ [music break] amy: "two spaces" by franknk black. this is democracacy now!, democracynynow.org, the ququarae report. i'm amy goodman withth juan gonzalez. as we e continue to look at t te republican race to confirm president trump susupreme court nominee judge amy coney barrett prioior to elelection day. if confirmed to fill ruth bader ginsburg seat, she will give a a 63 advantage to the conservativeves and me a majoriy

of the justices on the court were elected by dutch e electedy president xi did not win the popular vote. we're joined now by legal scholar samuel moyn. it is headlined "making the supreme court safe for democracy: beyond packing schemes, we need to diminish the high court's power." if you can talk about the history of the supreme court, you talked about it as a reactionary one in u.s. history, and what needs to be done, fetzer. -- professor. >> this country was founded on majority -- doherty role in the rejectction of democracy in the supreme court has long been a part of that picture. now that the right is on the ,rink of establishing control it is a a dangerous institution. that has long been the case. we are seeing g this chaharade,e

familiarar drill l in washingto. the reason it is happening is becaususe immense power to cocol ththe future of the countntry hs been p placed in the han o of night eleed jusustices in the first place. so no w wonder there is armagagn everery time sosomeone didies or retitires. maybe that is whatat we ought to think ababout changining. professor, i wanted to askk you, t this history, ththere isa series of court decisionons that involve basically sanctioning -- thee and imperial gravity ofof imperial terririto, whether it is the insular cases in the early 1 1900s or unundere justice john marshall courtrt, series of decisisions, the marshall trilogy o on the relationship of nativeve americs to the f federal goverernment -- none of this, however, , is reay discussed in t these hearings.

supposedlytled, coming decisioions that aree clearly unjust but h have never really been r raised to new supreme court nominees. could you expounund a little moe on this historiric reactionaryy nature of the court? >> from the bebeginning of the republic, theourtrt h been on boarard with the expulsion or extermination of native peoples, as you pointed out, with american empire at the end of the 19th and earlyly 20th centu. the ststriking legegacy thatat n after the abolition of slavery -- whihich of course the supupre cocourt alalso supported befefoe civil warr -- was the cocourt's o of theity with the rule wealthy, especially in the first gilded age. during the same later 19th a and early 20th century. franklin r rooseveltlt had to fe down the c court precisely for e reason that it w was an

institutioion of minority rule. thomas jefferson actually w ward that the very beginning g of our republic that his enemies werere fleeining into the judiciary and treating it as s a stronghold fm which they could rule no matter whwhat the people wanted. anand now inin our second gilded age, we have beeeen saying the same phenomenon n for decades. even before the current confnfirmationon battle, even be mitch mcconnell'l's hijinks, evn when ruth bader aa justice. ththe court was the most businessss-friendly court in a century. we have to understanand that, as you point outut, long-term rolef this court in our history. juan: so in essence, you're saying that peperiod o of the wn cocourt was really ann anomaly n terms of at least liberalalism n social and racial issssues, but that thehe court essentially has

thehehe trurump card of corporate elite of america in terms of maiaintainining its p ? >> that is largely right. role warns court was anonomaly d brief and sadly it did not get a lot done, especially after decades of pushback andd reaction. we shoululd also rememember that some o of the sicc work that didid wasrown vv b board sort of undoing the supreme court collision with the end of reconstrucuction in 1877 a and e unhoholy deal to l let the south return to apartheid. some -- ititn'tt do did do some valuable work. it is not clear. it is not clear we should be depending on the high court to do our d democratic work for us. and so the basic rights we care about, we ultimately need to

depend on convincing fellow citizens and entrenching our progressive ideals. and for that only a mass movement suffices, not getting our friend in high places. juan: when n the republicanss foughtht now, they''veve already crcreated d the narrative that democrats come to power in the white house a and senate theyeyl seek to pack t the court when in realality, i guess what you're saying is that ththe court is already packed. the questition is, under mitch mcconnell it has becomeme even morere packed, the question is w can it be unpacked or democratized? i'm m wonderining about what you would talk about just what you would see as s the most achievable, not necessarily the reforms that youou wouldrefer the most, but which w would be e most achievablble given the democrats themselves, they do come to popower will be fighting amongg themsmselves about the bt tytype of reform? >> aggressive have a menu of

options and they can order a lot of things off the menu to press the democrats, especially if joe biden wins i in the sesenate chs has. court packing is done ouout of e questionon. it depends on whwhat is d done. if you put two new liberal jujustices up there, so you'u're quot restoring the status --our proposal is you thinink about wawa of limiting the court's power to interfere with democraticic legislation as is happening with the. once again. we shohould not allow an institution n that can is over a decade in cooperation with this dark money funded conservative litigants with some of our most progressive laws. pass, if itis renews deal statute is passed -- green new deal ststatute e is

passed, , could do things like ininsulate t those laws om scrutiny by the federal judiarary. if we dream m big, we can do things like insist that judges can only invalidatate federal legislation by super majority so to fivet is not up conservatives, now 6, 2 invalidate laws that millions support anand very high levels f populalaty. what if we required a 7272 were aid to one or unanimous decision from the supreme court which findingmake i it is only a valued the constitution that everyone agrees about? , if y you couldynyn talk about the sutionn that james bradley offered to the problems posed by the supreme court, how he attempted to make judicial powers safer demomocrac selflf-rule.

to the was responding end of reconstruction when the supreme court gutted ththe attet help the civil war to african-n-americans, not just rerelease them from chattel slavery, begins s and equal citizenship.p. and he sought the courtrt in a case called the civil rights cases destroy some of congress's create freedom and equality in n this country. said theaw ththat, he justices should nonot be allowed to invalidatate legislslation us it is really clear that it violates the constitution. so he calalled for selelf-restr. in pticular, h he said there has -- it iss nototror

the judges get to secocond guess legislature because the legislslature also has a view about what the constitution allowsws and what is compatible with the. rather, it is the judges should only invalidate laws when they are just crazy. facefor a while, once fdr down the court in 1937, , the supreme court adopted ayers rule and engaged in self resestraint. but that has eroded d over time. actuallyly in part because of libeberal justices but also in more recent times, conservative justices.. i think we need too retririeve e idea t that the coururt has to e made safe for demococracy, but t justst rely on self-restraint. the judges promises never to interfere agaiain. soso if we do have to confronthe court once agagain, we should be inspirededy the oldd example tht thayer provides, but makake sure and learn from his mistakes.

we have to c change the institution so that it is s notp to judgeges to engage in self-restraint. we shoululd restrain the judgeso that they can't act. juan: o one of the things yoyoue noted i is, obviously, as people lilive longer r today than t thd back in the 19t9th or early 2 2h century and t the justiceces lit on the court stay longer, what about this issue of limiting the terms of supupreme couourt just? >> term limitation is a great ideaea. it is a kikind of basasic reform that a a lot of people agree about. rochonon introduced a bill. the problem with most t of the bills with her limitations is th they are pro sector. the current justices will be grandfatathered or grandmother o an and i don't think we can wait that long. the country is on fire. the best hope e for progrgressie

change is from the congress, not fromom the judiciary, which will not save us. so just limiting t terms is an obviou fix l liked it is n not enouough of a. not least t becae in the end, the problem isis n not who i is serving on the court or how long they get to stay, it is the power they have. and we need to curtail it. amy: we want to thank you for being with us, samuel moyn, professor of jurisprudence at yale law school and a professor of history at yale university. we will link your new piece in the new republic is titled "making the suprememe court safe for democracy." juan, i very happy early birthday. i i don't t know if we can use y in these dirire times, butut haa good one. and a safe one. of course, wear our mask, stay safe, save lives. democracy now!w! is looking for feedback from people who appreciate the closed captioning. e-mail your comments to outreach@democracynow.org or mail them to democracy now! p.o. box 693 new york, new york 10013. [captioning made possible by democracy now!]

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♪ hello. a very warm welcome to nhk "newsline." i'm yamamoto miki in tokyo. we start in bangkok where -- with developing news. thai police have cracked down on anti-government protests following the government ban of five or more people in an emergency decree. authorities have also arrested two leaders of the protests that have royaled thailand for three months.