justice scalia expressed his view in dissent. view,y justice scalia's the issue would be different in california versus texas. for two reasons. ought toice scalia provisions of the constitution were unconstitutional, so if you pictured severability being like pull oneame, if you out, can you pull it out while it all stands? scalia, his view was that if you pull bows two provisions out, could it still stand? here we are talking about one. also, congress has amended the statute since an of iv --nfib. california versus texas involves a different provision because of the zeroing out that was done by amendment. so that is have a two cases present slightly different issues. sen. feinstein: what do you think of all that? judge barrett: what do i think of -- severability? sen. feinstein: judge barrett: in that instance. i think the doctrine of severability as it has been described by the court serves a valuable function of trying not to undo your work when you wouldn't want a court to undo your work. severability strives to look at say,t

that was justice scalia. so i share his philosophy but i've never said that filled always reach the same outcome as ed. >> understood. but i think a case like this is a striking example of what it might mean to replace justice ginsburg and her methodology and approach to someone closer to justice scalia. frankly to me this comes back in part to the president who nominated you. president trump did not nominate you to carry on justice ginsburg's legacy. he wants to under minor change or shift that legacy and he's been very clear repeatedly before you were chosen about his intent to knowledge nate justices in the mold of justice scalia. you recognized yesterday that replacing justice griswold, with judge garland would have changed the balance of the court. you wrote it in in 2013. you recollection thighs did balance shifts are way supreme your knowlednominations are at n presidential elections. do you recognize that you will profoundly impact the balance of the court and the way it impacts future cases >>> i thi

that was justice scalia. so i share his philosophy, but i have never said that i would always reach the same outcome as he did. >> understood. but i think a case like this is a striking example of what it might mean to replace justice ginsburg and her methodology and her approach with someone much closer to justice scalia. and frankly, to me this comes back in part to the president who nominated you. president trump did not nominate you to carry on justice ginsburg's legacy. he nominated you because he wants to undermine or change or shift that legacy and he's been very clear repeatedly before you were chosen about his intent to nominate justices in the mold of justice scalia. you recognized yesterday in an exchange with senator leahy that replacing justice scalia with justice garland, had judge gaurland become justice garland would have changed the balance of the court. it's something you wrote about. you recognize these balance shifts are why supreme court nominations are so much at issue in presidential el

president trump has said he would appoint justices in the mold to justice scalia. as said on the campaign trail when asked what kind of justice he would nominate we are going to have a very strong test. if we want a strong conservative people that are smart. scalia is a terrific judge, clarence thomas look at him he's been a stalwart and we have others. type oftalked about the justices he did not like when he went on the campaign trail. he said i'm disappointed in roberts because he gave us obamacare. he had two chances to end and should have ended it by every single measure and he didn't so that was disappointing. everybody thought he wasoi good, he was a bush appointee and somebody that should have ended obamacare and he didn't. when president trump announced judge amy coney barrett they highlighted the parallels between she and her mentors justice scalia and said the judicial philosophy is mine, tomac. judge barrett was a supreme court clerk and justice scalia was one of the staunchly conservative members of the supreme court. justice scalia voted to strike down

. >> the way justice scalia ruled on abortion, and other controversial topics, you clerked for scalia and you follow his judicial philosophy. >> that would a dramatic departure from the way ruth bader ginsburg saw the law. >> let's listen in to senator lindsey graham. >> this is not a question directed at you. from my point of view, obamacare has been a disaster for the state of south carolina. all of you over there who want to impose obamacare on south carolina, we don't want it. we want something better. we want something different. you know what we want in south carolina, south carolina care, not obamacare, now why do we want that? under the affordable care act, three states get 35% of the money, folks, can you name them? i'll help you, california, new york and massachusetts. they're 22% of the population. senator feinstein is from california, nancy pelosi is from california. chuck schumer, the leader of the democratic senate is from new york. and massachusetts is elizabeth warren. why do they get 35% of the money when they're only 22% of the population. that's the way they designe

justice scalia dissented in both cases. you said in your acceptance speech that justice scalia's philosophy is your philosophy. do you agree with this particular point of justice scalia's view that the u.s. constitution does not afford gave people the legal right to marry. judge barrett: if i were confirmed, i would be just disparate, not justice scalia. i do not think anyone should assume just because justice scalia decided a decision a certain way i would, too, but i am not going to ask rest of you on whether i agree or disagree with justice scalia for the same reason i have been giving. used this tourg describe how a nomination comport herself at a hearing. no previews, no forecasts. everyone calls it the ginsburg rule because she stated it so concisely and it has been the practice of every not any sense, since. every nominee i really can't do that on any point of law. sen. feinstein: that's really too bad because it's rather a fundamental point for large numbers of people, i think, in this country. i understand you don'

justice scalia was much more cautious. she is definitely closer to scalia. she might be softer on certain types of issues. on the one hand she wrote in the texas law review, a majority cannot impose its vision with only votes. it must defend its approach to the constitution and be sure enough of its approach to settle reliance interests. i'm sure there was going to be a discussion of what reliance interests mean at her hearing. on the other hand, she wrote less rides on the strength of -- , then commonly supposed. especially in statutory cases were congress can simply overturn the court, there is perhaps more leeway, where as in constitutional cases were only the court can overturn itself or of course the constitutional amendment, maybe the court has to be more vigilant about being closer to the constitution being a true originalist. she has a great article on originalism. moreover, there are super precedents she says, for example, brown v. board of education. they're called that because they are not contested. the supreme court would never overturn them. it

justice scalia and thomas disagreed often enough that my friend teaches a class called scalia versus thomas. it's not a mechanical exercise. >> i will wait till the movie comes out. the bottom line for me is there's a narrative building in this country and again you can stand down, this is just me speaking for me. justice ginsburg was an iconic figure in american history, just not the law. she was a trailblazer. she fought for better conditions for women throughout society. she was unashamedly progressive in her personal thought. she wasn't about to her faith. she worked for the aclu. she was proudly pro-choice personally but all of us on this side, apparently when they voted, accepted that she was highly qualified. but i want the american people to know i think it's okay to be religiously conservative. i think it's okay to be personally pro-choice. i think it's okay to live your life in ali traditional catholic fashion, and you still be qualified for the supreme court. so all the young conservative women out there, district attorney is about a place for you. i hope when this is all

. >> justice scalia is an originalist, correct? >> yes. >> some say you are a female scalia. what would you say? >> justice scalia was a mentor and as i said when accepted the nomination his philosophy is mine. defendervery eloquent ism and that was true of textualism which is how i approach statutes. textualism, the judge approaches the text as it was written with the meaning at the time. but i want to be careful to say if i am confirmed, you would not be getting justice scalia. you would be getting just as barrett and that originalistst all agree. callednd teaches a class scalia versus thomas. >> i will wait until the movie comes out. [laughter] the bottom line for me is there is a narrative building in this country and this is just me speaking for me. justice ginsburg was an iconic figure in american history, just not the law. she was a trailblazer, she called for better conditions for women throughout society, she was progressive and her personal thought, she was devout to her faith, she worked for the but, proudly pro-choice, all of us on the side -- apparently when they

so justice scalia expressed his view and dissent even by justice scalia's view the issue would be different in california versus texas for two reasons. one, justice scalia thought two provisions of the constitution were unconstitutional. if you picture severability being like a "jenga" game, pull it out, can you pull it out while it all stands? if you pull two out, will it still stand? so justice scalia, his view if you pulled those two provisions out, could it still stand and here we're talking about one and also congress amended the statute since nifb versus sebelius and california versus texas involves a different provision because of the zeroing out that was done by amendment. so that's how the two cases present slightly different issue, whavgissu issues. >> what do you think of all that? >> what do i think of -- ishg severability? >> in that instance? >> i think the doctrine of severability described by the court serves a valuable function of trying flot ining not to un when you wouldn't want a court to undo your work. strives to took a stracatute, pulling it outs like in jenga, wouldn

justice scalia dissented in both cases. now, you said in your acceptance speech for this nomination that justice scalia's philosophy is your philosophy. do you agree with this particular point of justice scalia's view that the u.s. constitution does not afford gay people the fundamental right to marry? >> senator feinstein, as i said to senator graham at the outset, if i were confirmed, you would be getting justice barrett, not justice scalia. i don't think that anybody should assume that just because justice scalia decided a decision a certain way that i would too. but i'm not going to express a view on whether i agree or disagree with justice scalia for the same reasons i've been giving. justice begi justi justice ginsburg used to this how -- no hints, no previews, no forecasts. that had been the practice of nominees before her but everybody calls it the ginsburg rule because she stated it so concisely. it's been the practice of every nominee since. so i can't and i'm sorry to not be able to embrace or disavow justice sca

justices scalia and thomas disagreed enough that my friend teaches a class scalia versus thomas. it's not a mechanical exercise. >> i will wait until the movie comes out. so the bottom line for me is there is a narrative building in this country and, again, you can stand down, this is just me speaking for me. justice ginsburg was an iconic figure in american history just not the law. she was a trailblazer, she fought for better conditions for women throughout society, she was unashamedingly progressive in her personal thought, she was devout to her faith. she worked for the acl, she was proudly pro-choice personally but all of us on this side when they voted accepted that she was highly qualified. what i want the american people to know, i think it's okay to be religiously conservative, i think it's okay to be personally pro choice, i think it's okay to live your life in a traditional catholic fashion, and you still be qualified for the supreme court. so all the young conservative women out there, this hearing to me is about a place for you. i hope when this is all over that you

justice scalia dissented in both cases. you said in your acceptance speech for this nomination that justice scalia's philosophy is your philosophy. do you agree with this particular point of justice scalia's view, that the u.s. constitution does not afford gay people judge barrett: senator feinstein, as i said to senator graham at the outset if i were confirmed, you would be getting justice barrett, not justice scalia. i don't think anybody should assume just because justice scalia decided a certain way, that i would too. i will not agree or disagree just for the same reason i have been giving. justice ginsburg used this to describe how a nominee should comport herself at a hearing. no hints, no previous, no forecasts. that has been the practice of nominees before her, but everybody calls it the ginsburg rule because she stated it concisely and it has been the practice of every nominee since. i am sorry to not be able to embrace or disavow justice scalia's position, but i cannot do that on any point of law. sen. feinstein:

klobuchar: would you have ruled the same way and voted with justice scalia? of thearrett: one upsides of being an academic is you can speak for yourself. a professor offenses and can opine, but it's very different than a judicial decision-making process, so it's difficult for me to say how i would have decided that case if i had to go through the whole process of judicial decision-making i was describing this morning. now, having been a judge for three years, i can say i appreciate greatly the distinction between academic writing or academic speaking and judicial decision-making. a judge might look at an academic and say easy for you to say because you are not on a multimember court, you're not constrained by star a decisive's, you don't have real parties in front of you -- constrained by star a decisive's -- sen. klobuchar: you are you on theon the -- republican side said this should not be above public policy, but you were clear on your legal outcome in terms of your view of whose side you are on. you're on scully's side, and that's -- you are on scalia's s

that was justice scalia. so i share his philosophy. >> the reason i play that andy is because in case after case this has come back to her position as to how she would rule and she's simply not going to go there. i don't imagine this would suffice for democratic senators in committee but they only have so much push back power as of today >>> i think that's right. i think they're laying the groundwork for why they have a rationale to vote against this very impressive candidate. i thought that exchange with senator coons was very interesting because he was trying to paint her as something of an extremist on precedent and on what we call stare decisis in the law, not disturbing cases that have already been decided. she kind of zapped back at him and said remember that the case in texas, that overruled the prior supreme court case on homosexual relations. and he said, well, yeah, i -- i like precedent to be overruled, too, but only when it's ee agree juice and of course that goes to show his position when he like

nomination, your you described justice scalia. it appears you may be even more to the right of justice scalia, whom you described as the staunchest conservative. it is important to look at what kind of impact he would have had on more recent supreme court decisions. when justice ginsburg served on the court, numerous partisan decisions but what is noticeable are the more recent five to four decisions after justice kennedy, in the middle of the ideological spectrum, was replaced by a much more conservative justice. robertsstice conservative views were now in the middle of the ideological spectrum of the court. recent familiar with the 5-4 decisions were chief justice roberts formed four liberal justices to form a majority? i do not know what decisions you are referring to. sen. hirono: there are a number of them i will describe. these 5-4 cases touched on issues with your nomination. these include protections for -- daca, the right of criminal defendants, covid-19 safety measures, protecting agency regulations, a wide range of pred

it was an interview that i gave shortly after justice scalia's death. and at that time both sides of the aisle were arguing that precedence supported their decision. and i said while i had not done the research myself, my understanding of the statistics was that neither side could claim precedent. that this was a decision that was the political branchs' to make. i didn't say which way they should go, i said it was the senate's call. i didn't advocate or publicly support the blockade of judge garland's nomination as you're suggesting. >> that's not what i'm suggesting. you said it was a lateral, it would not be a lateral move. >> what i was suggesting is that it was unsurprising that there was resistance as a political matter to that nomination because it would change the balance of the court. >> i was surprised there was resistance in so far as there was that many members of the republican committee who stated publicly before the vacancy that they thought merrick garland would be a good person to have on the court and somebody who could appeal to both c

her good friend often the court, justice scalia, i think, got 97 votes. i don't know what happened between then and now. i guess there's, we can all take some blame, but i just want to remind everybody, there was a time in this country where someone like ruth bader ginsburg was seen by almost everybody as qualified for the position of being on the supreme court, understanding that she would have a different philosophy than many of the republicans who voted for her. 27 years on the court, before becoming a member of the court she was an active litigator, pushing for more equal justice and better rights for women throughout the country. her close friend until his death, justice scalia, called her the leading and very successful litigator on behalf of women's rights. the thurgood marshall of that cause. what high praise. i can't say anymore than that statement says. in my view, the person appearing before this committee is in a category of excellence, something the country should be proud of and she will have a chance to make her case to be a worthy successo

her good friend on the court, justice scalia, got 97 votes. don't know what happened between then and now. justn all take blame, we want to remind everybody there like time with someone ruth bader ginsburg was seen by almost everybody as qualified being on the supreme court, understanding she would have a different philosophy than many of the republicans who voted for her. 27 years on the court before becoming a member of the court. she was active litigator, pushing for more equal justice and better rights for women throughout the country. her close friend, until his herh, justice scalia, calls the leading and very successful litigator on behalf of women's rights. thurgood marshall -- the thurgood marshall of that cause. what high praise. any more than that statement says. appearing, the person for this committee is in the category of excellent, something the country should be proud of, and she will have a chance to make her case to be a worthy successor and to become the ninth member of the supreme court of the united states. 26, judge barret

and also justice scalia's. the senate is now tasked with carrying out its most solemn duty under the constitution. as we go through this process, we should heed justice ginsburg's words with a shared reverence for the court and its place in our constitutional system. this idea of place in our system of government is critical. ours is a government of separated powers. the power to make, enforce and interpret law isn't centralized in one person or one branch of government. that's not a mistake. you all know what our american revolution was all about and what the constitution is all about. because people at that time were sick and tired of one person george iii restricting american colonies of freedom that english-speaking people elsewhere exercised. as justice scalia reminds us, the framers recognized the separation of powers as, quote, the absolutely central guarantee of a just government, because without a secure structure of separated powers, our bill of rights would be worthless, end of quote. but this consti

that is she is supposed to be scalia, a different package but definitely scalia on the court for decades to come. remember this. the majority of people in america do influence the supreme court. there is a reason why brown is settled law. there is a reason why they want to tell us griswold is settled law and that roe v. wade is settled law. that is because the vast majority of americans agree with those positions. if you get a very kruf supreme court, and they start overturning roe v. wade and overtung gay marriage and overturning the aca there will be a political backlash in this country and they know that. they understand that will occur. republicans can be gleeful about putting a conservative on the supreme court but the people still vote and the positions they hold are out of the main stream of america. that's not going to work long term. it is just not going to work unless they convince america to change their mind about roe v. wade or about griswold or about gay marriage or about any of those things. >> correct me if i'm wrong andrea mitchell i don't think i've heard somebody askin

do you agree with justice scalia's assertion that the voting rights act is a "perpetuation of racial entitlement.?" judge barrett: senator feinstein, i can't -- i don't obviously know what justice scalia was thinking when he said that. any characterization of the or a statementct like that is simply really not something i can opine on. know, that is tied in, i would think, with the shelby county question. sen. feinstein: i'm not asking for a formal opinion. that it is aieve perpetuation of racial entitlement? judge barrett: senator feinstein, i think that goes in the question of whether the coverage formula was outdated and needed to be updated from the 1960's or not. i take that to be the thrust of the disagreement in shelby county, and a position that justice scalia was taking. again, i can't express a view on shelby county. sen. feinstein: ok. let me move on to workers rights and age discrimination. klepper v.ase, you joinn corporation, a majority of judges in holding that age discrimination in employment does not protect job applicants against employment practices that have a dis

her good friend on the court, justice scalia, got 97 votes. i don't know what happened between then and now. justn all take blame, we want to remind everybody there like time with someone ruth bader ginsburg was seen by almost everybody as qualified being on the supreme court, understanding she would have a different philosophy than many of the republicans who voted for her. 27 years on the court before becoming a member of the court. she was active litigator, pushing for more equal justice and better rights for women throughout the country. her close friend, until his herh, justice scalia, calls the leading and very successful litigator on behalf of women's rights. thurgood marshall -- the thurgood marshall of that cause. what high praise. any more than that statement says. appearing, the person for this committee is in the category of excellent, something the country should be proud of, and she will have a chance to make her case to be a worthy successor and to become the ninth member of the supreme court of the united states. 26, judge barr

justice scalia said there could be instances. if something had a technical meaning or how it was understood, that might be an appropriate time to consultant legislative history. or justice scalia himself consulted it when he was trying to determine whether there was an error in the way a statute was drafted. >> now i'd like to go to the united stat case that involved the interpretation of a case. ir had a big part along with senator lee and senator durbin in getting that passed in 2018. this is a most significant criminal justice legislation in a generation of criminal justice system can't just punish and deter. it must also rehabilitate successful entry into society. there was prison and sentencing reform. it was well-known that the goal of the act was to make smart and cost effective changes to the criminal code and to reduce risk of recidivism. so i want to ask you about your dissent in this case. the issue was whether the sentencing reform provision of the first step act applied to a defendant whose sentence was vacated. here

it is often reported that you and justice scalia are good friends. people don't understand how you can be so different in your thinking and still be friends. can you tell us how that happens? >> i have known justice scalia since the days that he was a law professor. i was so taken by his with and his wonderful sense of humor. i heard a lecture that he gave. i disagreed with most of what he said, but i loved the way he said it. justice scalia is a very good writer. he cares about how you say it. he is a very am using fellow. when he sat next to me on the d.c. circuit bench, not this configuration, but when justice o'connor was with us, i was sitting next to justice scalia. he could say something that was so outrageous and so funny, that i had to pinch myself so i would not laugh out loud in the courtroom. >> humor? >> it's that and because we both care about family, and about each other's families. >> back in here i know you've got your robes. tell us how that works on court day. >> on a court day, the roads i kept in the living room, and we all had c

justice scalia, whose broad philosophy you embrace, dissented. he thought it was unconstitutional and voted to strike down the entirety of the law. in wrote an article "constitutional commentary" in 2017 which you are quite critical of chief justice roberts' decision. i want to ask you, not as a matter of debating abstract academic principles, but because i believe the outcome in this case, a week after the election may hang in the balance. he wrote in the article, in a case that upheld the aca against the constitutional challenge, chief justice roberts push the affordable care act beyond its plausible meaning to save the statute. i think those are fighting words as an originalist and textual list. you were referring to chief ruling thatrts' the aca is constitutional under congresses taxing powers, protecting the law and health care of a majority of americans. do you think the chief justice's ruling was implausible and unsound? senator kunz, what i said in that article -- s, what i said was the statutory interpretation, it was the less natural ra

i also clerked for justice scalia. and, like many law students, i felt like i knew the justice before i ever met him, because i had read so many of his colorful, accessible opinions. more than the style of his writing, though, it was the content of justice scalia's reasoning that shaped me. his judicial philosophy was straightforward -- a judge must apply the law as written, not as she wishes it were. sometimes, that approach meant reaching results that he did not like. but, as he put it in one of his best known opinions, that is what it means to say that we have a government of laws and not of men. justice scalia taught me more than just law. he was devoted to his family, resolute in his beliefs, and fearless of criticism. and, as i embarked on my own legal career, i resolved to maintain that same perspective. there is a tendency in our profession to treat the practice of law as all-consuming, while losing sight of everything else. but that makes for a shallow and unfulfilling life. i worked hard as a lawyer and as a

. >> justice scalia is an originalist, correct? >> yes. >> some say you are a female scalia.hat would you say? >> justice scalia was a mentor and as i said when i accepted the nomination his philosophy is mine. he was a very eloquent defender of originalism and that was true of textualism which is how i approach statutes. for textualism, the judge approaches the text as it was written with the meaning at the time. but i want to be careful to say if i am confirmed, you would not be getting justice scalia. you would be getting justice barrett and that is because not all originalists agree. neither do text to ellis. -- textualists. a friend of mine teaches a class called scalia versus thomas. >> i will wait until the movie comes out. [laughter] the bottom line for me is there is a narrative building in this country and this is just me speaking for me. justice ginsburg was an iconic figure in american history, just not the law. she was a trailblazer, she called for better conditions for women throughout society, she was progressive and her personal thought, she was devout to her

nomination, your you described justice scalia. it appears you may be even more to the right of justice scalia, whom you described as the staunchest conservative. it is important to look at what kind of impact he would have had on more recent supreme court decisions. when justice ginsburg served on the court, numerous partisan decisions but what is noticeable are the more recent five to four decisions after justice kennedy, in the middle of the ideological spectrum, was replaced by a much more conservative justice. robertsstice conservative views were now in the middle of the ideological spectrum of the court. recent familiar with the 5-4 decisions were chief justice roberts formed four liberal justices to form a majority? i do not know what decisions you are referring to. sen. hirono: there are a number of them i will describe. these 5-4 cases touched on issues with your nomination. these include protections for -- daca, the right of criminal defendants, covid-19 safety measures, protecting agency regulations, a wide range of pred

tell us about the scalia/ginsburg friendship and the impact it made on you. >> so justice scalia famously when the vacancy came up, i think justice white's seat that justice ginsburg filled but when it came open in the clinton administration justice scalia recommended her even though they were on the d.c. circuit and knew she had a different approach. and a lot is said in the weeks since justice ginsburg died about that friendship because i think it speaks so well to both of their characters that despite the fact that they had such great differences and they could fight with the pen they -- when they were socializing, when they were outside of the opinion writing world, they had respect and affection for one another. and that's how i've tried to live my life with -- i have friends who disagree with me vehemently about all kinds of things but i think it is dehumanizing if we reduce people to the political or policy differences we might have with one another. >> thank you. congrats on being half done. >> for the record i really enjoyed listening to you, senator sass. i think you make a lot

in fact, not since scalia have i seen a nominee that meant it like she did. she is real live originalist. she also made very clear in these hearings that she does not believe that roe v. wade is so-called super precedent. that's very important. >> laura: robert, senator klobuchar at one point seemed to want to, well, she was inferring or implying i should say, implying that judge barrett got nominated because of her role in working for bush v gore as a young lawyer in the challenge to the 2000 election results. watch this exchange. >> any argue that bush v gore hurt the court's legitimacy. if you are confirmed, the supreme court will have not one, not to, but three justices who worked on behalf of the republican party in matters related to the bush v gore case. >> 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. >> laura: robert, senator klobuchar is a former prosecutor. but back to jonathan's point, these were for the most part lane

that was justice scalia. i share his philosophy, but i never said that i would reach the same outcome as he did. sen. coons: understood. but i think a case like this is a striking example of what it might mean to replace justice ginsburg and her methodology and her approach with someone much closer to justice scalia. frankly, to me, this comes back in part to the president who nominated you. president trump did not nominate you to carry on justice ginsburg's legacy. he nominated you because he wants to undermine or shift that legacy. he was been very clear about his intent to nominate justices in the mold of justice scalia. you recognized yesterday in an exchange with senator leahy that replacing justice scalia with justice garland would've changed the balance of the court. it's something you wrote about in 2013. in the texas law review. you recognized these balance shifts and why supreme court nominations are so much an issue in presidential elections. can you just acknowledge that your confirmation, even th

she and justice scalia were friends, yes, but she never embraced his legal philosophy. so that is what concerns me, and i want to turn to an area that, where i think justice ginsburg, whose seat we are considering you for, was truly a hero and that was the area of voting rights. and that was the area of elections. i think that -- what did the president say here? he said -- september 23, 2020, i think this, he means the election, will end up in the supreme court, and i think it's very important that we have nine judge ises. i don't think how much clearer we can be. as i said yesterday, i do not for a minute concede that this election is going to end up in the supreme court, because people are voting in droves as we speak, but that is what is on the mind of the man who nominated you for this job. then he said, on september 29th of 2020, i think i'm counting on them, he meant the court, to look at the ballots indefinitely. so i know you said earlier in questions from senator leahy that you are not going to commit to whether or not you are going to recuse yourself from any

of ruth bader ginsburg, it's scalia's seat she will really fill. >> it's the content of justice scalia'swhat shaped me. a judge must apply the law as written, not as she wish it is were. >> reporter: while six of her seven children sat behind her, the political posturing played out for hours in front of her. democrats aired their disdain that republicans are rushing to fill this supreme court seat before the election. and warned americans that their access to health care is at stake when the court hears arguments on the affordable care act november 10th. >> the president has promised to appoint justices who will vote to dismantle that law. >> reporter: republicans p preemptively made barrett's religion the focus calling out any democrat who makes the faith an issue. >> when you tell them they are going to be a catholic judge, that's bigotry. the practice of bigotry from members of this committee must stop. >> reporter: none of the democrats focused on her faith instead of focusing on her health care. several senators appeared remotely refusing to attend in person around other senators wh

justice scalia died in february of 2016. within just a few hours after the death of justice scalia, leader mcconnell unilaterally announced that the senate would not consider a replacement for justice scalia until after november 2016 presidential elections, which established a year-long vacant supreme court seat. the republican leader's action backed by his caucus set a very clear precedent. under no circumstances do senate republicans consider a supreme court nominee in a presidential election year. it did not matter that in march 2016 president obama appointed merrick garland, a respected d.c. circuit judge with bipartisan support. they would not meet with judge garland, hold a hearing, or allow a vote on him for 293 days. in 2016 the presidential election was nearly nine months away. four years ago our republican colleagues said nine months was not time enough. leave it up to the voters. we will do this whether it's a democrat or a republican in the white house. the republican leader mitch mcconnell said, and i quote, mr.

the clinton administration justice scalia recommended her. he knew she had a different jurisprudential approach. a lot of us said in the weeks since justice ginsburg died about that friendship because it speaks so well to both of their characters that despite the fact that they had such great differences and they could fight with the pens, when they were socializing and outside of the opinion writing world. they had respect and affection for one another. that's how i've tried to live my life. i have friends who disagree with me vehemently about all kinds of things. i think it's dehumanizing if we reduce people to the political or policy difference we might have. >> thank you. >> for the record i really enjoyed with me to you, senator sasse. i think you make a lot of sense. you explain the system very well. you don't have to be a lawyer to understand with the laws all about i think you did it very much so. senator coons. >> thank you, mr. chairman. thank you, judge barrett. you and your family, welcome. i guess i am on the downside if you're h

. >> and justice ginsburg was in the majority and justice scalia in the minority? >> yes. >> so if you were to replace justice ginsburg with someone who followed precisely justice scalia's analysis, on the linchpin question of constitutionality, one could expect it would be overturned. >> no, senator coons, because if there were direct challenge to nfib versus sebelius, there would be precedent on point, and the law of stare decisis is a whole body of doctrine that binds judges itself. so no, i don't think one could assume that in a separate point in time that even justice scalia would necessarily decide the case the same way once there was precedent on the books. >> i agree and i look forward to discussing that in some more detail tomorrow. i have just i think six minutes. your views of precedent, justice scalia's view of precedent and the ways they diverge are important and important for us to spend some time on. let me just recap this point. for president trump, for republican politicians, the argument about tax and about whether or not the mandate is a tax, is

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 r

justice scalia christopher joins us now and he's coed tore of the book the essential scalia on constitutione just curious i know you're not a lawyer but i was curious your dad's name was brought up so much, and his legacy so prevalent what did you think of his exclerk? >> she was very impressive. she's very, she's very, obviously, she's very smart. she is very articulate, and she's just remarkably poised. i think that note pad moment was pretty effective and people are talking a lot about it for good reason. it just showed i think all of those things in just one very -- memorable image. and you know,ening she showed why my father liked her as a clerk. >> he liked had a big family she has a big female so bring that similarity but when she did say you're going get justice barrett not justice scalia. if eve this the sail philosophy what do you think she means? >>s that one of the thing about originalism. originalism means as usually practiced means interpreting the constitution and its provisions according their original public meaning. so they have the same approach but that could lead you to

justice scalia dissented in both cases. now, you said in your acceptance speech for this nomination that justice scalia's philosophy is your philosophy. do you agree with this particular point of justice scalia's view that the u.s. constitution does not afford gay people the fundamental right to marry? >> senator feinstein, as i said to senator graham at the outset, if i were confirmed you would be getting justice barrett, not justice scalia. so i don't think that anybody should assume that just because justice scalia decided a decision a certain way that i would, too. i'm not going to express a view on whether i agree or disagree with justice scalia for the same reasons i've been beginning. justice ginsburg used this to describe how a nominee should comport herself at a hearing, no hints, no previews, no forecasts. that had been the practice of nominees before her but everybody calls it the ginsburg rule because she stated it so concisely and it has been the practice of every nominee since. i'm sorry to not be able to embr

justice scalia expressed his view in dissent.w,y justice scalia's the issue would be different in california versus texas. for two reasons. ought toice scalia provisions of the constitution were unconstitutional, so if you pictured severability being like pull oneame, if you out, can you pull it out while it all stands? scalia, his view was that if you pull bows two provisions out, could it still stand? here we are talking about one. also, congress has amended the statute since an of iv --nfib. california versus texas involves a different provision because of the zeroing out that was done by amendment. so that is have a two cases present slightly different issues. sen. feinstein: what do you think of all that? judge barrett: what do i think of -- severability? sen. feinstein: judge barrett: in that instance. i think the doctrine of severability as it has been described by the court serves a valuable function of trying not to undo your work when you wouldn't want a court to undo your work. severability strives to look at say,tue a

her good friend on the court, justice scalia, i think, got 97 votes. i don't know what happened between then and now. i guess there's -- we can all take some blame. but i just want to remind everybody, there was a time in this country where someone like ruth bader ginsburg was seen by almost everybody as qualified for the position of being on the supreme court, understanding that she would have a different philosophy than many of the republicans who voted for her. 27 years on the court, before becoming a member of the court, she was an active litigator, pushing for more equal justice and better rights for women throughout the country. her close friend until the -- his death, justice scalia, called her the leading and very successful litigator on behalf of women's rights, the thurgood marshall of that cause. what high praise. i can't say any more than that statement says. in my view, the person appearing before this committee is in a category of excellence, something the country should be proud of, and she will have a chance to make her case to be a wor

senate, joining us tonight is christopher scalia, he is the son of the late justice antonin scalia, hee director of academic programs in the enterprise institute, judge amy coney barrett clerk for chris's father when the late justice ruth bader ginsburg was on the supreme court, good friends with justice scalia in ruth bader ginsburg seat is the one in which judge barrett will soon take residence. chris, good to have you with us, we appreciate it and i would like to get some sense, looking at the votes for your father who is confirmed to the court, 98 98 - 0, that is a remarkable vote, ruth bader ginsburg is good friends, 96 - 3, these are entirely different times, your thoughts as you watch a woman who is a remarkable talent and clearly an extraordinary american have to go through what she did to join the court that your father sat on for such a long period of time. >> thank you so much for having me on it's a real pleasure to talk to you about this. those were different times but you have to remember that in between my father's confirmation and the confirmation of justice ginsburg, t