was sitting next on the dias because senator klobuchar was not in the room. obviously significant focus on the democratic side of the aisle on the affordable care act. we heard a lot of discussion about severability which i'll leave it to our legal experts to get into in more detail. but you heard the judge talk about the idea of severability as jenga, whether you could remove one piece and whether the whole law topples down. she was pressed as hard as we've seen her pressed on any topic by senator dick durbin on the questions of voting rights and the tension between her views on whether or not felons could have access to firearms versus felons who could have access to the franchise, that was an important exchange. then we saw the more broadly, nakedly political part of this confirmation process with senator cruz there at the end using this as an opportunity to go after sheldon whitehouse, i

don't think they'll be exchanging christmas cards this year, and the federalist so the and other issues that tend to be catnip to judiciary committee members and the reporters who cover them but probably not broadly interesting to the rest of the elect rorate. >> i saw ted cruz noticed the posters being put outside. in this time of pandemic, we have a lot less politics you would normally see in the halls of congress or outside the capitol. what have you observed? >> it's interesting, the capitol complex is still closed, no visitors or protesters here. the kavanaugh confirmation, the gorsuch confirmation, you had huge crowds in the hallways, disruptions in the room sometimes. none that have is here. you can see the room is far more empty than it normally is. you heard cruz mention a little bit of a heated back and forth

with durbin, there aren't a lot of people in the room because there is a pandemic going on and a lot of people go back to their offices to watch when they're not speaking. there are protests outside of the building, we had something 20 to 25 protesters get arrested on the first morning of the hearings. but it's been nothing like the kavanaugh confirmation hearings where protests were as much a part of the hearings themselves as anything else that was happening in the room. >> garrett haake inside the room for us. garrett, thanks very much. before i get to our super panel, i want to bring in sheldon whitehouse, democratic senator from rhode island who got the attention of ted cruz after his conversation. senator whitehouse, thanks for taking a few minutes with us. you've been very focused on essentially trying to surface for a mainstream audience the campaign that took place on the right to create a conservative

court, to create a conservative movement, that this was more than just one thing. why have you felt it important to devote the time you've devoted to this? i would argue, you know, almost all of your time has been on this. more so than on the affordable care act, like your colleagues. why have you decided to make this the focal point? >> mostly because the dark money operation that is at work in the courts so badly does not want it to come out. they go through such efforts to hide this whole scheme. things as simple as pretending there are 11 different amicae who are in a chorus without revealing that they're all paid by the same big republican donors and that this is orchestrated, this is performance art. and the problem is that it brings great discredit on the court. and it's really pernicious because this same crew affects both the selections of the judges and it funds the

campaigns for them, and then it comes and tells them what to do in these orchestrated flotillas afterwards. it's not a good thing. it's hidden from the public. and people need to know. >> you heard the retort from senator cruz, it's like, you want to talk about dark money, what about your side, what about the democrats and dark money, and sheldon whitehouse has accepted dark money or benefitted from dark money. let me ask you this, the larger issue about the democratic party has certainly done -- is certainly engaged, now, they will argue they're not for it but the saying goes, we're not going to fight with one hand tied behind our back. isn't that the struggle sometimes with trying to point out what they're doing because for instance on dark money, democrats have not unilaterally disarmed. >> and nor should we. but the real difference here is that if you look at who is pushing hr 1, for instance, in

the house, who is pushing my disclose act in the senate to bring some sunlight and some transparency into this mess, it's democrats. every single democrat in the senate voted for the disclose act. every single republican voted against it. that's the vote that matters. do you want this dark money nonsense or do you not? republicans want it. we do not. but since their republican majority on the supreme court created unlimited money in politics and allowed dark money to infiltrate that, we have to fight back. and we have no choice but to do that. i think we're doing the right thing to do that. but it's the height of hypocrisy to blame us for participating in a game that they have protected. >> it does seem as if, as a political observer, i always see -- i always look to see how somebody reacts to something. and we've seen the republican side of the aisle seems to be pretty sensitive to what you've done. we've heard ted cruz has twice

now had to i guess play, in his mind, play cleanup for the federalist society. we've also seen it on the affordable care act. yet you're going to lose the battle here. she's going to get confirmed, it looks like. but do you femael you're winnina messaging war if you lose the battle for the actual nomination? >> i don't know that it's a messaging war. i think it's a war for integrity in government and a war for transportati transparency and a war to get grubby special interest fingers out of places they don't belong. i think it's important that we win that war. and let me be clear about the federalist so the, if isist soc. i have no objection to the federalist society on law school campuses. i have no objection to them running a think tank. what i object to is being

anonymous donors, $250 million by the "washington post's" estimate, to take over and control who gets nominated to the united states supreme court. that is wrong. the federalist society should not be in that business. no private entity should be in that business and none of them should accept dark, anonymous money. >> is that a federal on ist soc problem or a republican party problem? they've made the decision to use the federalist society as their vetting organization. >> the question is who is the "they" there. my contention would be both the republican party and the federalist society are being used by these very big, very wealthy interests and industries to try and control the judiciary. and i think it's happening to a certain extent in plain view.

but the federalist society isn't the problem. the federalist society is the conduit for a dark money enterprise that is trying to run the court for us in cases they'll decide their way. >> how would you wave your magic wand? clean up the judicial nomination process. i'm doing a special on our streaming channel, peacock, this week about sort of the judicial wars. i guess we could say it started with bork. how would we clean up this mess? how could you depoliticize this process? >> i think about this a lot. i think the first thing to do is to bring a lot of transparency into it. there's no excuse for not knowing who wrote a $17 million check to support justice kavanaugh getting on the supreme court. people know. the public doesn't know, i don't know, but people know. somebody wrote that $17 million check. everybody should know. and that should be across the board. it should be for the amicus

curie, there should be complete transparency. then we should look into how deep this problem goes. once we know how deep this problem goes and explained it to the american people, then we could look at what further remedies might be appropriate. this has two stages, like many things. the first stage is the transparency stage. and the second is the repair stage once you see what rot the transparency has revealed. >> if judge amy coney barrett never came through the federalist society but was this conservative, would you have an issue with her on her qualifications? you may have issues ideologically, but on her qualifications. >> yeah, i have concerns with her ideologically primarily. and with the fact that so many republicans who are involved in her appointment have been signaling what it is that she's going to do.

and this rush to november 10 obviously signals that's their idea of a torpedo at the affordable care act even if she doesn't think so. so there are a lot of reasons apart from her qualifications to be really, really concerned about where this court is going and who is pulling its strings. >> do you think at some point joe biden should release a list of people so that -- you talked about transparency. is that something we should see more of? this is what donald trump did. now, i'll be honest with you, i thought that was a -- you know, i think when you publicly put out who might be supreme court, i think that could bias a process. but do you think joe biden should be doing this for transparency reasons? >> no. no, i don't at all. i think transparency comes when you actually have a vacancy and you're going through the process of selection, and you haven't in-sourced the federal society and its donors to do that for you in the white house the way

white house counsel mcgahn said they had done. i think the transparency matters. but i think the list was a political stunt for trump. remember, nobody knew where he was going to go. his big donor crowd is desperate to own the court. if he could produce a list they had signed off on, and they thought he would be a good guy on judges they wanted, that quieted them on that concern. so it was an important signal from him to the republican big donor elite. but it wasn't good practice and wasn't anything joe biden or anybody else should replicate, i don't believe. >> sheldon whitehouse, i appreciate you giving us a few minutes. this is supposed to be a lunch break so thanks for choosing us before getting something to eat. thanks for your time. i'll say all your names fast every time, like i'm selling go here.

hallie jackson, the white house today seemed to be a little focused on another story that they're trying to get attention to that seems to have a lot of extraneous odd facts to it. so i think they're going to have to struggle with that. are they disappointed they're not getting sort of reflected -- you know, it feels as if she's going to get confirmed but this hasn't been a political win for the president. >> well, it's hard to see how it's a political loss, right, chuck? it's something you'll hear the president -- and he has been talking about at rallies and on the campaign trail. but it's interesting, you note this other tangential story that has a lot of question marks around it that the trump campaign is trying to push out, that's what their focus has been in the messaging over the last eight hours or so even when republicans appear to be on the precipice of confirming the third supreme court justice in the trump administration, which is obviously a huge deal, i don't have to tell you that. the lack of coordinated messaging around that is interesting. so for example, there is -- has

been campaign calls, you know, talking with reporters, pushing other things beyond the supreme court story, which i think is leaving a lot of folks scratching their heads on why they're not just focusing on this, because to be honest, there are a lot of people in the conservative sort of wing of the media and observers and pundits who are very impressed with the way that judge amy coney barrett is conducting herself, the way she's managing to sidestep a lot of the questions. democrats and folks at the more progressive end of the scale say she's stonewalling and are furious about that, but if you're on the conservative end of things there's a lot to talk about about why that's a good thing. chuck, this is not new, president trump is foregoing a political gift that's looking him in the face and instead trying to turn to something else. we've seen him do that again and again in the past. i do think some people around the president are trying to get him on board because the idea of a more conservative judiciary, the idea of confirming federal judges, that is proven to get voters out on the conservative

end. so i think there's folks around the president trying to say, hey, focus on this as much as you can. he'll have an opportunity to do so, frankly, since the committee vote isn't until next week and the confirmation vote on the floor after that. this will stretch after the election. but today it's not the sole focus of the trump campaign. >> andrea mitchell, the democratic base, do you think there's any nervousness among mainstream democrats that, you know, they're not going to win this fight and there will be some that grumble that say, hey, democrats didn't fight as hard as they could have, and i think some would argue, well, they're trying to look past this, they don't think they have the votes so they're trying to look past this. should democrats worry at all about base anxiety over this? >> oh, sure. but i think clearly chuck schumer's calculus heres with the caucus was the worst thing they could do is repeat a judge

kavanaugh, now justice kavanaugh, confirmation process, that that would backfire badly. i think clearly their strategy is to focus on what worked for them in 2018, which is obamacare, and it helps that november 10 is the oral arguments on the latest challenge, the most serious challenge, i should say, to obamacare and that, why the rush, that kind of combines their arguments against the rush to judgment here, why can't they wait 'til after the election to decide and maybe they could peel off two more republicans, which is what they would need in a lame duck or at all in order to stop this thing, if there were a landslide, an overwhelming election, which we're not positing but is not beyond the releva realm of calculation here. could they make the case to some republicans, even some who lost their seats in some of those hard, tightly-fought senate races. that's what i think the calculation is. i just talked to senator

whitehouse, what he's trying to point out is really the heavy hand of the federalist society in creating the conduit and as he puts it, a conduit for, as he would describe it, this dark money enterprise, other people would say they're interest groups just as there are in progressive sirgcircles that ar active in this case. i have never seen tv commercials in prime spots on the personal qualities of her candidacy. i do think that one of the most damaging things yesterday, and i haven't seen them really go into this today, is the recusal issue that came up, and particularly on the subject of closely-fought election and why she would not recuse herself, because as my counsel, pete williams, tells me, those rules and regulations, statutes that apply to the appeals court and to the lower courts, do not apply to the

supreme court justices, it really is up to them. and she doesn't have to take all those other things, the statutory issues on recusal, into consideration to decide that she has an appearance of conflict, would be the main argument, if she gets involved in this election. >> ari melber, let's get into some of what she said today and some of her answers there. we got into, and lindsey graham began a little bit on the difference between precedent and a super precedent. obviously it struck me, i'm always -- to me the first questions that are from a friendly in a supreme court nomination on a given day usually are about cleanup. so it seemed they were concerned about this precedent versus super precedent regarding roe, did you get that sense? >> yeah, i think they definitely want to protect her on roe and obamacare without going past the lines they've been using to basically evade saying too much. just to remind everyone, super

precedent is not a thing. courts don't actually say because this is a super precedent, we dismiss the case or uphold the case. this is sort of an out-of-court thing that has evolved because of the import of certain cases. everyone thinks about brown v. board as something that everyone claims to be for. you don't see a judicial nominee in either party talk about going back to supporting segregation by law. and so this term is thrown out, saying some things are super precedents. i think what you saw republicans do on both that issue and obamacare was try to say, well, yesterday we said she can't answer anything and we still feel that way but if there's anything you don't like about the implication of certain answers, don't worry, the thing you don't like isn't happening, so maybe roe being a super precedent means they're not going to uproot it right away. and chuck, if i may, about obamacare, we heard all this talk about separability and

jenga. that whole thing is, the trump justice department today wants to get rid of all of obamacare, that's their public position, whether you agree with it or not. the republican party as everyone knows in congress has been trying to do that. at one point the house held over 40 votes to do that. yet i thought it was fascinating this morning, and people can make up their own minds, so suddenly see that same movement now announce, by the way, nothing to worry about, because of this doctrine of severability, maybe obamacare will be okay, clearly on defense there. >> no, it was like i said, a bit of a tell. before i get into harder core politics with my guests on the panel here, we're sneaking in a quick break. when we come back, claire mccaskill, rich lowry, al franken and the entire team. we'll be right back. and, in more and more cities, the unprecedented performance of ultra wideband. the fastest 5g in the world. it will change your phone and how businesses do everything. i'm proud, because we didn't build it the easy way,

we built it right. this is the 5g america's been waiting for. only from verizon. but a resilient business you cacan be ready for it.re. a digital foundation from vmware helps you redefine what's possible... now. from the hospital shifting to remote patient care in just 48 hours... to the university moving hundreds of apps quickly to the cloud... or the city government going digital to keep critical services running. you are creating the future-- on the fly. and we are helping you do it. vmware. realize what's possible. and at fidelity, you'll get planning and advice to help you prepare for the future, without sacrificing what's most important to you today.

because with fidelity, you can feel confident that the only direction you're moving is forward. because with fidelity, you can feel confident vicks vapopatch. easy to wear with soothing vicks vapors for her, for you, for the whole family. trusted soothing vapors, from vicks but before we sign i gotta ask... sure, anything. we searched you online and maybe you can explain this? i can't believe that garbage is still coming in. that is so false! frustrated with your online search results? call reputation defender today to join tens of thousands who've improved their online reputation.

get your free reputation report card at reputationdefender.com or call 1-877-866-8555.

do you agree with originalists who say that the medicare program is unconstitutional? >> well, let's see. so i think i can't answer that question in the abstract, you know, because as we've talked

about, the no hints, no forecasts, no previews rule. >> my question was did you ever write or speak out in defense of the aca, whether as an academic or as a member of the judiciary. that's a pretty simple question, it could be yes or no. >> no, i've never had occasion to speak on a policy question. >> you're on record for criticizing chief justice roberts' opinion that the individual mandate is constitutional. >> i think you're suggesting i have some hostility with the aca which i assure you i don't. >> so once again, obviously, health care also taking center stage. we spent a little bit of time with senator whitehouse there. so claire mccaskill, do you think this has had -- it may have had an impact politically. do you think this has had an impact on her? it's interesting that she is now feeling the need to say, i'm not hostile to aca, while still not answering questions, she's

trying to certainly soften an image that's out there. >> that's absolutely had no effect on her, everybody on that committee knows who she is. she sent plenty of signals as a lawyer, as a law professor, and even as a judge. you know, it was laughable when ted cruz, oh, these three days have revealed she's going to be confirmed. no, that's not what they've revealed. mcconnell revealed she was going to be confirmed when eight hours after ruth bader ginsburg died he put the final nail in the norms of the senate. but what it has revealed is that there is a real issue about the health care law. and i've just got to say, lindsey graham on severability, let's remember one thing. the trump administration specifically asked in june of 2018 for the united states supreme court to strike down preexisting conditions. their initial pleading, they didn't ask for the whole law to go down but they sure asked for

preexisting conditions to go down. they since amended their pleading and said they want the whole thing to go down. but their initial ask of the court was to wipe out the very thing that so much of this hearing has been focused on. >> richlowry, i know you're bullish on the idea that, oh, the democrats, you think they're trying to create more heat about the aca than you think is there and certainly there's some legal experts who think it could end up going nowhere. but politically, do you think democrats have certainly made a mark here on health care regardless of whether you dispute some of the substance of this debate? >> i don't think they've really made a mark on barrett. i think it's part of a campaign theme that's been very effective. i never thought the justice department should have gotten behind this case or to argue that the entire law should be

thrown out on the basis of a mandate or a tax depending on how you look on it, that's zeroed out and has no effect on anyone anymore. if you're going to do all that, you need a replacement plan, which they haven't had, so that's all bad politics. but i don't believe democrats have landed any blows against barrett. i think this is a successful nomination, a successful nominee. she's clear, she's composed. she's knowledgeable. morning consult has been asking not about the timing of the vote but do you support confirming this particular nominee and the numbers have been moving in her direction, the latest number today is 48% of americans favor her confirmation and 31% oppose. so she's handled herself brilliantly. she is an exemplary nominee, a woman of integrity, and a high accomplishment. she's going to be confirmed to the court and deserves to be on the court.

>> al franken, how would you say your former colleagues are doing in this hearing? >> i think they're doing well. i think aca is a big topic here. i disagree with rich. listen, this is about the federalist society, sheldon is very right about that. the federalist society makes sure going in how these people are going to vote on the court. leonard leo said something when he did gorsuch, he said, there's going to be no surprises here. he told that to jeffrey toobin. they vet -- listen, the president said, i'm only going to choose people from the federalist society and the heritage foundation. they vet everyone. the idea that, they've asked her, have you talked to president trump about overturning aca, overturning roe. she doesn't have to. the federalist society talks to

her and they talk to the president. this is all a fix. this is all a kabuki dance. she -- claire talked the other day about how she was auditioning for this after she knew it was possible that she could get a supreme -- by writing that thing about roberts, writing that scholarly article about roberts deciding that wrongly. nine republicans on the committee have written amicus briefs against this. they want to get rid of the affordable care act. there was not one republican bill that has guaranteed people protection for preexisting conditions. not one. they don't want to do that. the same as on roe. the idea that, oh, well, have you talked to the president? oh, my goodness.

and this is just a kabuki show. sheldon was right, this is a puppet show. yes, rich says, oh, she's been exemplary. yeah, because she hasn't said anything and she does the kabuki dance. >> i am curious, rich, lindsey graham began, he had an opening statement, i'm not going to play it because we're a little short on time, we see people coming in. he said this is the first time in american history we've nominated a woman who is unashamedly pro-life and embraces her faith with no apology. certain aspects of the republican party are very excited about this, certainly a vibrant pro-life committee. when you look at the roe numbers, when you look at supporting row and not supporting roe, it's a 60-30 proposition, it's not 50/50. this is not good swing vote politics in november. >> i wouldn't see any reason

why, about half the country is pro-life, and why jurists who are pro-life should be banned effectively from the supreme court, it makes no sense. this confirmation is not having a big effect on the election. >> i want to start out again by reminding friends at home -- >> did we just go back to the hearing? >> -- we shouldn't be here right now. we are in the middle of the pandemic. people are sick. 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, and that is they are afraid of losing their health care in the middle of the pandemic. people's lives depend on the 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 was

diagnosed was breast cancer. janet from rochester, whose brother has a mental illness. that is what is on the line. health care is on the line. and judge, that's what's 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. and that's about if you can uphold part of a statue but throw out another part of it. and you correctly said there is a presumption to save the statute if possible. so i want to be really clear with the american people that the trump administration's own brief, this is a position of the trump 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's brief that they have filed represent the administration's and therefore the president's position before the spirit? supreme court? >> the solicitor general is the government's advocate before the court, yes, that would represent the united states. >> and if the brief didn't represent the president's position, he would have the solicitor 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 this doctrine to separate stuff and to try to uphold part of the statute, like maybe preexisting conditions or 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 you have 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 ram 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. and we know this. you've said you consider justice scalia, one of the most conservative justices in our nation's history, a mentor. you criticized the decision by justice roberts upholding the affordable care act. in an npr interview you praised the dissent by justice scalia in

another affordable care act c e case. you featured in an ad that called for an end to what the ad called the barbaric legacy of roe v. wade which ran on the anniversary of the 1973 me that decision. that leads me to wonder if you will have the polar opposite judicial philosophy of justice ginsburg. to me that would change the balance of this court which is already 5-4 and known as very conservative, when you look back through history, to 6-3. 6-3. and that would have great repercussions for the american people. so i wanted to follow up on something that senator harris and i asked you about yesterday, and that is the issue of 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 reasoning for upholding the

affordable care act. the president tweeted, just one day after you were nominated, that would be september 27, 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 appointments will do the right thing on obamacare. unlike justice roberts. yesterday, you were asked by senator harris, prior to your nomination were you aware of president trump's statements committing to nominate judges who would strike down the affordable care act. you said, i can't definitely give you a yes-or-no answer, what i would like to say is i don't recall hearing about or seeing such statements. and 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 things that have happened over the last few years. regarding the president's -- really his obsession to repeal obamacare. he said, we will repeal and replace disastrous obamacare, when accepting the republican nomination at the republican convention in 2016. did you see that speech? >> the republican convention? >> in 2016. i'm not asking if you were there. i'm asking if you saw it on tv. >> no, i don't believe i watched any of the convention on tv. or if i did, i don't remember any of it. >> he has said things like, it begins 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 am calling on congress to repeal it. he's said can you believe that mitch mcconnell couldn't get it done. so there have literally been

hundreds of statements by him, by my colleagues, and i just find it hard to understand that you were not aware of the president's statements. >> umm, 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' question yesterday to be referring to the specific tweet, 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? >> umm, i -- as i said before,

i'm aware that the president opposes the affordable care act. >> i know you're aware now but were you aware back then? when you were nominated. >> well, senator klobuchar, i think that the republicans have kind of made that clear, it's just been part of the public discourse. >> okay. but then is the answer yes, then? >> senator close in klobuchar, questions, you're suggesting i have animus, that i cut a deal with the president. i was very clear yesterday that that wasn't what happened. >> were you generally aware of the president's statements when you wrote in an article in the university of minnesota law school journal in 2017, the same year that you became a seventh circuit judge, that he pushed the affordable care act beyond its 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? >> so that article, senator harris told me yesterday, was published in january of 2017.

and a 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 for randy barnett's book. i can't remember when it was but i suspend it was before the election. >> but president trump has been saying this in 2015, in 2016, and that's two years. it didn't take you that long to write the article. so 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 sometime before the presidential election. and again, i want to stress i have no animus to or agenda for the affordable care act. so to the extent you're suggesting this was like an open letter to president trump, it was not. >> okay. in the 2017 university of minnesota law school journal

that we just discussed, one of the things you said is, there is a risk that a faction can run away with the legislative process but there is also a risk that a faction will conscript courts into helping them win battles they have already lost fair and square. that's something you wrote in that article? >> i did. i was responding to an argument made by randy barnett in his book, "our lost" -- no, i don't know if it was "our lost constitution" or not. >> they have tried 70 times, republicans in congress, to overturn obamacare. and now they are bringing this case to the court and you are going to be sitting on the court. and so -- and i find it very hard to believe that you didn't 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, more than 800 businesses have closed every day. 30 million people were out of work at the height of the pandemic. we're still down 10 million jobs. and so one of the things that's been going on here is we've seen more and more consolidation, leading me to antitrust. and part of this i think is the covid relief package we have to pass, but also antitrust. competition is a driving force of our economy. justice ginsburg at her nomination hearing described the sherman act as a broad charter. she said that free enterprise is 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, insofar as it prevents combinations -- contracts, combinations, and conspiracies and restraint the 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. >> yes. and i think you and i have discussed this before. but in recent years, supreme court opinions, by the way, all decided over justice ginsburg's dissent, have made enforcing our antitrust laws even more difficult. as a textualist, how would you reconcile the broad language of the sherman act with recent judicial precedent that is substantially narrowed the application of the statute in practice? >> umm, let's see. i can say as a textualist how i would approach the sherman act. in the case of the sherman act, you're right that it's 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 think -- i haven't really had occasion to decide very many

antitrust cases on the seventh circuit. but it's an area, because it's largely been left to judicial development, that is controlled by precedent for the most part. >> mm-hmm, it is. and that's my concern right now, is that it's been so narrowed in its interpretation of the sherman act, the 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 recount in florida that was related to the bush v. gore guys including on the absentee ballot issue on the republican side of the case, is that right? >> did i work on bush v. gore. i did work on behalf of the republican side. to be totally honest, i can't remember exactly what piece of the case it was. >> no worries, i'm not going to ask you that. >> okay. >> we're in the middle of a global pandemic that is forcing voters to choose between their health and their vote. are absentee ballots, better

known as mail-in ballots, an essential way to vote for millions of americans right now? >> that's a matter of policy on which i can't express a view. >> to me that just feels like a fundamental part of our democracy. but okay, let's try this. have you ever voted by mail? >> umm, i can't really 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 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 family vote by mail. >> you understand we're operating in a moment where the president is undermining vote by mail even though a number of republican governors and republican senators are supportingi supportive of it. many argue that bush v. gore, back to your earlier work, 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 that's a coincidence? >> umm, senator klobuchar, if you're asking me whether i was nominated for this seat because i worked on bush versus gore for a very brief period of time as a young associate, that doesn't make sense to me. >> i just think it's such a coincidence to 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 related to the upcoming election, do you think that will undermine the legislate malegit court? >> asking whether something

would undermine the legitimacy of the court or not seems to be eliciting an opinion about whether justices should sit on a case or recuse. we went down that road yesterday. >> i know, you said you wouldn't recuse. >> that isn't what i said. >> you're right, you said you would announce your decision on recusal and wouldn't commit to recusing. again, i think the public has a right to know that now three of these justices have worked on the republican side on a major, major issue related to a presidential election. one thing i wanted to revisit quickly. smiley v. home. the reason i asked about that is that this would be unprecedented, when we -- 90 we're in an unprecedented time where we have a president who refuses to committee 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. and in smiley v. home where the supreme court held that a governor is part of the legislative process and therefore a legislature cannot unilaterally change election rules, that could be very important because we have a number of swing states where we have a legislature of 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? it said that a governor is part of the legislative process. >> i actually am not familiar with that case. but it is precedent -- obviously it's a precedent of the court. >> okay. i wanted to turn to one last issue and that is first amendment and freedom of the press, near and dear to my heart. my dad was a journalist, he would go anywhere for a good story and cared a lot about freedom of the press. and regrettably, our right to a free and independent press is

under assault. we have witnessed unprecedented attacks on journalists and journalism in the past several years. our president frequently uses his twitter account to attack news organizations. he has accused the media of being fake news and called them the enemy of the people. obviously we also have journalists overseas that are under attack by dictators. i want to pay special tribute to those brave journalists whose dogged pursuit of the truth never wavered despite threats of imprisonment, violence, and even death. journalists like jamal khashoggi and the men and women of the capitol gazette. their legacy is proof that fear will not silence facts. the founders recognized that a free press is vital to a vibrant and strong democracy and that's why we need supreme court justices who understand the importance of protecting the right of right of journalists.

first time v. sullivan, that's the landmark ruling and support of the first amendment protection for the press and protecting journalists unless they say something untrue with actual malice. justice thomas has expressed skepticism with that case writing in his concurrence in mcgee v. caucosby, then neither should we. do you agree with justice thomas that the court should reconsider the actually malice standard because it is inconsistent with the original meaning of the constitution? >> senator klobuchar, i can't really express a view on either new york times v. sullivan without violating the principle that i've repeatedly stated that i can't comment of matters of litigation or precedents that the court has already decided. >> i also want to ask you about how journalists have been deterred from doing their jobs under the threat of jail time.

after the supreme court's 1972 decision in bransburg v. hayes many federal courts of appeals have recognized what's called the reporter's privilege which protects a reporter's first amendment right to protect his or her sources from disclosure in certain circumstances. the seventh circuit on which you serve has rejected a constitutional basis for reporter's privilege. 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 which i can't answer in a hypothetical form in the hearing. it's also a question as you point out that's closely related to ones that are being litigated. >> one last try. do you agree that if reporters cannot protect their sources, they are less likely to find confidential witnesses willing to share confidential informers willing to share information about issues of public importance? >> senator, that would both be a policy question, a matter of

public policy which i can't express a view on and presumably one that might factor into the question of what the first amendment protects. so again that's not something that i can give appear opinion on in this context. >> okay. i guess my last thing i'll just say is i hope people watching out there are going to follow the tracks of this record and are going to vote. 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 or wherever, probably with a big gaggle of grandkids around you, how will you judge whether or not you had a successful career as a judge and justice? >> i would judge whether i had a successful career by whether i had always acted with integrity, whether i had always followed the rule of law and resisted the

temptation to twist the law in the direction that i wanted it to go, whether i had treated my colleagues kindly and with collegiality, whether i had mentored and -- mentored, helped and had good relationships with my clerks and any assistants or staff that i had because both the law and the people are important. >> and how would that differ from how a senator should look back on her or his career after hopefully not 30 or 40 years, but in my view 12 would be a good limit. how should senators look back on their career and how does it differ from judge. >> i probably can't say how a senator himself or herself would but i'll say as a citizen how i might evaluate a senator's career and that would be to say that he pursued good policy. did he sponsor legislation 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 both todd young and mike braun just have these huge gasps of relief at the thought that you're not going to be running for senate from indiana at some point. i think it's been clear in our conversations over the last three 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 policy 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 hear 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 and the american people are overwhelmingly in favor of your confirmation. so just since this record seems to have been distorted so

repeatedly with this idea that the american people are opposed to this, the public view of your confirmation is overwhelmingly in favor. i think plus 17 in the polling of this morning. but anyway, i certainly don't want you to comment on that. i'd like to transition to your writings a little bit. you again are a prolific writer. i think justice breyer is the only person sitting on the court that i can see that looks like he's written more than you have. he's got a few decades of extra time as an adult writing relative to you. can you tell us how you think your writing might change in the future? how will you pick venues, topics, audiences? what will you write about as a justice? again, presuming confirmation. >> yes. so 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, since being confirmed to the bench was i published a lecture that i gave at case western, and then i edited a

transcript of remarks that i gave on a panel, but it wasn't like a full-length article with an idea. i found frankly that it's hard to manage, you know, all the demands of family life and the job and writing the kind of scholarly articles that i did in the past. if i remained on the seventh circuit and perhaps if i'm confirmed at some point 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 that is writing that is designed to educate about ideas. i think justice o'connor's civics program where she really set herself out to teach, you know, high school students and people in america about civics and how the civics process works. so i would see myself wanting to try to reach more general audiences. but if i have time once my kids

get a little older, maybe i'll dip back into scholarly writing again. >> i think that's very helpful. i think it would be very useful if we had more justices that did that civics education. you named a few. i think there are some others over the last 30 or 40 years that did a lot of civics education. i differ with former chairman grassley about whether cameras would be a good idea in the court. not asking you to opine on that. i'm glad we get the audio transcripts. i'm glad we have a lot of press that cover the court. i think we'd get a lot more michael avenatti nonsense if we had cameras in the court. i think we get transparency but not as much thee at ricks from those arguing in front of the court. so more cameras in the court is a bad idea. more justices before the public explaining the structure of the constitutional system would be a huge asset. given your history with notre dame students and law students, it seems like a natural fit for you.

so 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 of those constitutional structure questions for a popular audience, can you explain what the ninth 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 dock republictrine under it. it's that an individual's rights are preserved. those not expressly granted aren't taken away. >> if we maybe broaden it from just the ninth 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, and by that i mean beginning with article 1, moving up, was that the very structure of government protected rights. and there wasn't thought to be 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. but those who really felt like they wanted the additional protection of the bill of rights prevailed and james madison drafted them and they were ratified in 1791. >> i don't mean to put words in your mouth, i mean to put out a hypothesis so you can expand or correct me. is it correct that most governments have had a default -- citizens don't have rights unless governments proactively give them rights.

the assumption is you don't have freedom of religion, you don't have the freedom to start a business and the american system starts with the opposite assumption which is freedom is the default position. people are created in the image of god with inalienable rights, these are pregovernmental rights and the government has to be enumerated powers. we, the congress, have to authorize article 2 branch, the executive branch to go ahead and do anything. if they don't have those authorities, they in the executive branch and the administrative agencies, they can't do anything unless congress gives them the freedom and the people's default assumption is freedom. so our system is