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FS1_SCOTUS CHAIRMAN ISO_CHUB 1_1320 CSPAN POOL SENATE JUDICIARY COMMITTEE CONFIRMATION HEARING ON THE NOMINATION OF JUDGE AMY CONEY BARRETT TO THE SUPREME COURT DIAS ISO FULL COMMITTEE Nomination of the Honorable Amy Coney Barrett to be an Associate Justice of the Supreme Court of the United States Day 2 WITNESS JUDGE AMY CONEY BARRETT And the topics they are discussing today have little bearing to the rights that are really at issue and in jeopardy of the supreme court. And so let's take a few minutes to go through them. First of all, we have had some discussion of roe vs. Wade. You have declined to give an opinion on a matter that might be pending before the court, that is of course the same answer that every sitting justice has given when he or she was sitting in the same chair you are. It is mandated by the judicial candidates of ethics, whether one is a nominee of a democratic president or Republican not president, that has been the answer given to this committee for decades. But I do think it is interesting that our democratic colleagues number one, don't discuss what 13:19:20 would actually happen if there came a day where roe vs. Wade was overruled, which is namely that it would not suddenly become a case that abortion was illegal, but rather it would revert to the status of the law as it has been for nearly 200 years of our nation's history, which is that the question of the permissibility of abortion is a question for elected legislators at the state levels and the federal level. And it is difficult to dispute that there are great many of those issues including jurisdictions like California and New York who even if roe vs. Wade were no longer the law of the land, their elected legislatures would almost certainly continue unrestricted access to abortion with virtually no limitations. What I find interesting though is that our democratic colleagues do not discuss what 13:20:22 is really the radical position of the most liberal justices on the supreme court, which is that no restrictions whatsoever are permissible when it comes to abortion. Yesterday one of the democratic senators made reference to the case Gonzales versus Carhart. I am quite familiar with that case, and I represented Texas and a number of other states in that case. It concerned the constitutionality of the federal ban on partial birth abortion. It was legislation in the past congress was signed into law that made the really gruesome practice of partial-birth abortion accessible. An overwhelming of majority is believed that partial-birth abortion should be prohibited, even those that identify as pro-choice. A significant amount of Americans don't want to see that gruesome practice allowed. Supreme court by a vote of 5-4 13:21:25 in Carhart versus Gonzales upheld the ban on partial birth abortion. That means they were four ready to strike it down. Ready to conclude that you can to ban abortion. That you can't ban late-term abortion. And by with the way, other restrictions that are in question include parental consent to laws, parental notification laws, none of our democratic colleagues want to talk about the justices they want to see on the court would strike down every single reasonable restriction on unlimited abortion, and the vast majority of Americans. How about free speech? Well, we have heard quite a bit about free speech. To the senator from Rhode Island just gave a long presentation, complete with lots of charts. I will say a couple of things on free-speech. First of all, our democratic 13:22:25 colleagues when they address the issue of so-called dark money and campaign finance contributions are often deeply, deeply hypocritical. And don't address the actual facts that exist, here are some facts, of the top 20 organization spending money for political speech in the year of 2016, 14 of them gave virtually all of their money to Democrats. In another three split their money evenly, so only the top three gave their money to Republicans, what does that mean in practice? That meant the top 20 super pac donors contributed $422 million to Democrats and 189 million to Republicans. Those who give these impassioned speeches against dark money don't mention that their side is funded by dark money with a massive differential. 13:23:26 The senator from Rhode Island talked abc cout big corporate powers without acknowledging that the contributions from the fortune 500 in this presidential election overwhelmingly favored Joe Biden and the Democrats. Without acknowledging that the contributions from Wall Street in this election overwhelmingly favored Joe Biden and the Democrats. It's an awful lot of rhetoric about power, but it gets even more interesting when you look at supreme court nominations. We just heard an attack on "The federalist" society, a group that I've been a member of for over 25 years. I joined as a law student. A group that brings conservatives, libertarians, constant dilution constitutionalist together to discuss the law. What is interesting is nowhere in the senator of Rhode Island's remarks was any reference to a company called Arabella advisors. Which is a for-profit entity 13:24:29 that manages nonprofits including the 1630 fund in the new venture fund. What on Earth all of those? They sound dark and confusing names, well, according to "The Wall Street journal" this Sunday in the year 2017 and 2018, those entities reported $987.5 million in revenue. That's nearly a billion dollars. We heard a lot of thundering indignation at what was described as $250 million of expenditures, and in this case you have a billion dollars, the senator of Rhode Island said with that much money, much of which is dark money that we don't know who contributed, he asked, what are they getting for it? And by the way, one of the things they are getting for it is the group called demand to justice. A project of those entities, spent $5 million opposing justice Brett Kavanaugh who has 13:25:33 just launched a seven-figure add by opposing your confirmation. So all of the great umbrage about the corporate interest that are spending dark money is wildly in conflict with the actual facts of the corporate interests that are spending dark money are funding the Democrats. By a factor of 3-1 or greater. Effect that doesn't ever seem to be acknowledged. But not only that, what with citizens united about? It is interesting, most people at home have heard about citizens united. And they know that it makes Democrats very, very upset. But they don't know what the case is about. Citizens united concerned whether or not it was legal to make a movie criticizing a politician. 13:26:33 Specifically citizens united is a small nonprofit organization based here in D.C. That made a movie that was critical of Hillary Clinton. In the Obama justice department took the position that it could fine, it could punish citizens united for daring to make a movie critical of a politician. The case went all the way to the U.S. Supreme court with the oral argument that there was a moment that was truly chilling, justice Sam Alito asked the Obama justice department is it your position on your theory of the case that the federal government can ban books? In the Obama justice department responded yes. Yes, it is our position that if the book criticizes a political candidate, a politician, the federal government can ban books. As far as I'm concerned, that is 13:27:34 a terrifying view of the first amendment. Citizens united was decided 5-4 by a narrow 5-4 majority, and said that the federal government cannot punish you for making a movie critical of a politician. And likewise, that the federal government could not ban books. Four justices dissented, four justices were willing to say that the federal government can ban books and movies and presumably could ban books as well. When Hillary Clinton was running for president, she explicitly promised every justice she nominated in the court would pledge to overturn citizens united. By the way, Hillary Clinton said that she would demand of her nominee is something you have rightly said that this administration has not demanded of you, which is a commitment on any case as to how you would vote, Democrats have shown no 13:28:36 compunction in expecting their nominee is to make a promise, here is I'm going to vote on a pending case, judicial ethics be damned. Or how about the second amendment. We have heard some reference to the heller decision. Senator from Connecticut yesterday talked about reasonable gun control and gun safety provisions. That of course was not what was at stake in the heller decision. Number one trend majority decision justice to's opinion, acknowledges reasonable provisions, things like prohibitions on felons and possessions are permissible. Your opinion in the decision likewise acknowledge that restrictions from -- 13:29:36 are entirely permissible under the second amendment. But the issue of heller was much more fundamental. It was whether it protects an individual's right to bear arms at all. The vote in heller was 5-4. By a vote of 5-4, the majority struck down the district of Columbia's total prohibitions on owning an operative firearm in the district of Columbia. The argument of the four dissenters was not what are colleagues talk about here. Itas not some reasonable gun control provisions are okay. That was not the argument of dissenters. That question we can actually have a reasonable debate. Reasonable minds can differ on what the appropriate line should be. But that was not what was at issue with heller. The position of the four dissenters was the second amendment protects no individual right to keep and bear arms whatsoever, but merely a "Collecve right of the militia." 13:30:37 Which is fancy lawyer talk for a nonexistent right. Four justices would have ruled that way. One vote away. The consequences of the court concluding that there is no individual rights on the first amendment would mean you and I and every American watching this would lose your second amendment rights. It would mean that the federal government, the state government, the city could ban guns entirely. Could make it a criminal offense for anyone of us to own a firearm. And no individual American would have any cognizable right to challenge that. That is a radical reading of the constitution. That is effectively erasing the second amendment from the bill of rights. In Hillary Clinton likewise promised in 2016 that every justice she nominated would commit to voting to overturn 13:31:38 heller. They were big on litmus tests. And Joe Biden, even though he refuses to answer just about anything about whether or not he is going to pack the court, he did tell the American people that the voters don't deserve to know whether he is going to pack the court. Truly a statement of disrespect and contempt for the voters, unusual in our political process. One vote away from the second amendment being erased from the bill of rights. Not of our democratic colleagues admit, but that is their agenda. And those are the justices that democratic president to limit presidential nominees are saying they will appoint. Justices who will take away your right to criticize politics, justices who will allow censorship, justices who allow 13:32:38 books and movies to be banned, justices who erase the second amendment from the bill of rights, and how about religious liberty? Religious liberty is an issue near and dear to a great many of us. The right of every American to live according to your faith and conscience, whatever that faith may be, religious liberty is fundamentally about diversity. It is about respecting diversity that whatever your faith tradition might be, the government is not going to trample on it. Religious liberty cases over and over, the case that I litigated dealt with the ten commandments monument that stands on the state capitol grounds. It has been there since 1961 in Texas. An individual plane, an atheist, a homeless man filed a lawsuit trying to take down the ten commandments and it went all the way to the supreme court. It was decided 5-4. 13:33:41 Four justices were willing to stay in effect, send in the bulldozers and tear down that monument, because he cannot gaze on the image of the ten commandments on public land. Another case in the mojave desert veterans memorial, this is a memorial erected to the men and women who gave their lives in World War I. A white Latin cross, simple and bear in the middle of the desert. I have been there on sunrise rock where it stands. The aclu filed a lawsuit saying you cannot gaze on the image on public land, and the aclu won in the district court. The federal courts ordered that veterans memorial to be covered up with a burlap sack with a chain on the bottom, and apply a wood box. When the case went to the supreme court, I represented 3 million terans pro Bono for 13:34:42 free defending that veterans memorial. >> We won 5-4, and there were four justices prepared to say tear down the veterans memorial, and under the reasoning that they put forth, they were not far away from saying bring out the chisels and remove the crosses and the stars of David on the tombstones of the men and women that gave their lives in Arlington cemetery defending this nation. That is a radical view, and we are one vote away. That is utterly contrary to the text of the first amendment, to the understanding of the first amendment. When we argue the ten commandments case in the supreme court, there was more than a little bit of irony. You know how many times the 13:35:43 image of the ten commandments appears in the courtroom of the supreme court? The answer to that is 43. There are two images of the ten commandments carved on the wooden doors as he walked out of the courtroom, he would soon be sitting looking at them. Therefore the images of the ten commandments on the bronze Gates on both sides of the courtroom. And then judge Barrett, when you are sitting at the bench above your left shoulder will be a phrase you know well, a free is carved into the great lawgivers, one of whom is Moses, he is standing there holding the ten commandments. The text of which is legible in hebrew as he looks down on the justices. And four justices are willing to stay in effect, bring out the sandblaster's, because we must remove god from public square. That is a profound threat to our 13:36:43 religious liberty, and I would note that it is not just extend to public knowledge is. It also extends to religious liberty. The little sisters of the poor, our catholic convent of nuns who take oath of poverty who devote their lives to caring for the sick, caring for the needy, caring for the elderly. The Obama administration litigated against the little sisters of the poor seeking to find them in order to force them to pay for abortion inducing drugs among others. It's truly a stunning situation when you have the federal government to litigating against nuns. The supreme court decided the hobby lobby case, another case routinely denounced by senate Democrats, the hobby lobby case concluded that the federal government could not permissibly 13:37:44 force a Christian business to violate their faith. It reflects the religious liberty traditions that you can live according to your faith without the government trampling on it. You know what this body did, I'm sorry to say? Senate Democrats introduced leslation to cut the religious freedom act. That past with over overwhelming bipartisan majority. Senate Democrats including chuck Schumer and Joe Biden, all voting for the religious restoration act. President Bill Clinton signed the religious freedom restoration act. And in the wake of the hobby lobby decision, they voted to got to the protections for religious liberty, and I am sorry to say that every senate Democrat voted to do so. Not a single one, zero would defend religious liberty. Joe Biden has already pledged if 13:38:44 he is elected, he plans to initiate again the attack on the little sisters of the poor. Now it is interesting, folks in the press like to talk about pope Francis. And on some issues pope Francis has been vocal when it comes to the environment, when it comes to issues concerning immigration, the pope has been vocal on issues that are democratic colleagues like and agree with. The press is happy to amplify those views pretty somehow missing from the amplification's acknowledgment that when the pope came to the United States in Washington he went and visited the little sisters of the poor. Here in D.C. He went to their home here in D.C. And the Vatican explained that he did so because he wanted to highlight their cause. That the federal governmt should not be persecuting nuns for living according to their faith. That's what is at stake in these nominations. 13:39:44 And you won't hear any of that from the senate Democrats on this committee, that's why their base is so angry at your nomination, judge Barrett, because they do not believe that you are going to join the radical efforts to erase those fundamental rights from the bill of rights. I believe that issue preserving the constitution, preserving the bill of rights, the fundamental liberties, I believe is the most important issue facing the country in the November elections. And I think for those of us who value those rights, we should take solace in the fact that not a single Democrat is willing even to acknowledge the radical sweep of their agenda, much less defend it. They know it is wildly unpopular, and look, right at 13:40:46 the heart of this is a decision many Democrats have made to abandon democracy. You see, most policies, policies like Obamacare, policies like health care, most policies under the constitutional system were meant to be decided by democratically elected legislators. Why? So they can be accountable to people. So the voters disagree, they can throw the bums out. But too many Democrats have decided today that democracy is too complicated. It is too hard to actually convince your fellow Americans of the merits of your position. It is much easier just to give it to the courts, finding five lawyers in the black robes and let them decree the policy outcome that you want, which makes your radical base happy, presumably makes the millions, if not billions in dark money being spent for Democrats happy 13:41:49 without having to justify it to the American people. Judge Barrett, I'm not going to ask you to respond to any of that. But I do want to shift to a different topic. Which is a bit more about you personally, your background. Judge Barrett, do you speak any foreign-language is? >> Once upon a time I could speak French, B I have fallen woefully out of practice, so please don't ask me to do that right now. >> You can be assured of that, because I had two years of high school French, and I suspect yours remains much better than mine. How about music? Do you play any instruments? >> The piano. >> How long have you play the piano? >> I played the piano growing up or ten years. And now most of my piano playing consists of playing my children songs for them and supervising their own piano practice. I look forward one day when I have more time to be able to choose some of my own music. 13:42:51 >> Do the kids do piano lessons as well? Speak of the kids do piano lessons, some of the older ones who are in high school have gotten so busy with sports and those things that they have stopped, but the younger children do. >> Our girls are nine and 12 and they both do piano lessons and I will say in our household it is less than voluntary. >> [Laughs] >> One of the things Heidi and I have found particularly the last six months during covid Emma which has been an extraordinary crisis, is just with two kids at home that doing distance learning when schools were shut down was really hard for us with two children, for you and your husband, you have seven kids, how did you all managed through the lockdowns and distance learning? What was that like in the household? >> It was a challenging time as it was for every American, our oldest daughter Emma who is in college moved home at that point, because she is at notre dame. 13:43:51 It is closed. So Emma could manage her own e-learning and our high school children could as well, but Jesse and I try to divide and conquer the approach for the younger four, and it was quite challenging, I assure you. >> One part of your story that I find particularly remarkable, and that I admire is the decision you made to adopt two children. You and your husband had five biological children, and you adopted two more. Both of your adopted children are from Haiti. Haiti is a country that has some of the most crushing poverty in the world. My brother-in-law is a missionary in Haiti, and actually Heidi and the girls just got back from Haiti a couple of weeks ago. I was curious if you would share with this committee and with the American people what led you and your husband to make the 13:44:52 decision to adopt? It is one of the most loving and compassionate decisions any family can make. >> When Jessie and I were engaged, we met another couple who had adopted, in the sense it was a couple who adopted a child with special needs, and we also met another couple who adopted a few children internationally, and we decided at that point while we were engaged that at some point in the future, we wanted to do that ourselves. And I guess that we had imagined initially that we would have what ever biological kids that we had decided to have, and adopt at the end, but after we had our first daughter Emma, we thought, why wait? So I was expecting tests when we went and got Vivian. So she and tests, we call them are fraternal twins, they are the same grade. And it has enriched our family immeasurably. And once we had adopted a Vivian 13:45:52 at that point, then we made that decision that we definitely wanted to adopt again. Several years later John Peter entered our family. >> So your children have been wonderfully well behaved. I think that you are an amazing role model for little girls, what advice would you give little girls? >> Well, what I am saying is not designed -- my brother now has left, I was thinking of what my father said before the spelling bee, anything boys can do, girls can do better. So since my sons are also behind me, I will say that boys are great too. >> Thank you. >> Thank you very much, Mr. Chair, welcome again, judge . Since I have the draw to always follow senator Cruz, I did want to make one thing clear after listening to that for a half-hour, that Joe Biden is catholic and he is a man of faith. And then I want to turn to something else, and that is that 13:46:53] we need a recess in my mind for the people at home. A bit of a reality check that this is not normal right now. We have to understand that what people are dealing with 7.7 million people have gotten this virus. And 214,000 Americans have died, and for people watching at home and wondering what we are all doing in this room right now, and may be at home because you lost your job or maybe you got your kids crawling all over your couch right now, maybe you are trying to teach your first grader how to do a mute button to go to school or maybe you have a small business that you had to close down or that is struggling, we should be doing something else right now. We should not be doing this. We should be passing coronavirus relief like the house just did, which was a significant bill that would've been a big help. And I think that people have to know that right now. Whether you're a Democrat, 13:47:55 independent, or Republican, and that's why it started out yesterday by telling people that they need to vote. Number two, some of my colleagues throughout this hearing on the other side have been kind of portraying the job that the judge is before us on as being some kind of ivory tower exercise. I think that one of my friends called it, related that you would be dealing with the dormant congress because. I'm sure that might be true, but we also know that this is the highest court in the land. That the decisions of this court have a real impact on people. And I appreciate judge, that you said you did not want to be a queen. I would not mind being the queen around here, truth be known. I would not mind doing it. A benevolent queen of making decisions so that we can get things done. But you said that you would not let your views influence you and the like, B the truth is the supreme court rulings rule 13:48:56 people's lives. They decide if people can get married. They decide what schools they can go to. They decide if they can even have access to contraception. All of these things matter. So I want to make that clear. And to the third reset her that I think we need to have is that this hearing is not normal. It is a sham. It is a rush to put in a justice. The last time that we had a vacancy so close to an election was when Abraham Lincoln was president. And he made the wise decision to wait until after the election. The last time we lost a justice so close to an election. That's what he did. Today we are 21 days from the election. People are voting. Millions of people have already cast their ballots. And I go to the words of 13:49:56 senator Mcconnell, the last time we had a situation, he said the American people should have a voice in the selection of their next supreme court justice, therefore this bank and see you should not be filled until we have a new president. That set the precedent that so many of you have embraced. Or at least you did a few years ago, which is that in an election year, the people choose the president, and then the president nominates the justice. So why is this happening? Well, that is a good question. This guy, our president. He is the one who decided to pop a supreme court nomination in the middle of an election, when people's health care is on the line with the case before the court on November 10th. So let's see what he said about the supreme court. Well, one of president trump's campaign promises in 2015 was that appointment 13:51:00 will do the right thing on Obamacare. You can see it right here. And in fact, judge, just one day after you are nominated, this is a few weeks ago, he said also on Twitter that it would be big win if the supreme court strikes down the healthful. So judge, my first question, do you think that we should take the president at his word when he says his nominee will do the right thing and overturn the affordable care act? >> Senator klobuchar, I can't really speak to what the president had said on Twitter. He has not said any of that to me. What I can tell you, as I have told your colleagues earlier today, is that no one has elicited any commitment in the case or brought up that commitment in the case. I am 100% committed to judicial Independence from political pressure. 13:52:01 So whatever people's party platforms may be or a campaign promises may be, the reason why judges have life tenure is to insulate them from those pressures. So I take my oath seriously to follow the law. And I am not pretty committed on what I precommit to decide a case any particular way. >> I think that the life tenure, the idea that you have just for everyone out there a job for life makes this even more important for us to consider where you might to be. And I know that you have not said how you would rule on this case that is coming up right after the election, where the president had said it would be a big win if the supreme court strikes down the law, but you have directly criticized justice Roberts in an article in my own state, and one of the Minnesota law school journals. It was in 2017. It was the same year you became a judge. And when Roberts writes the opinion to uphold the affordable care act, you said he "Push the 13:53:03 affordable care act beyond its plausible meaning to save the statute." Is that correct? >> Senator klobuchar, I want to clarify, is this the constitutional commentary publication that you and I discussed? >> Yes, it is, but it is still -- >> Okay. I just wanted to be sure. >> Again, did you ask that question? Did you say that? That he pushed the affordable care act beyond the plausible meaning to save the statute? >> One thing I want to clarify is you say that I criticized chief justice Roberts, and I don't attack people. It just ideas. So it was designed to make a comment about his reasoning in that case, which as I have said before is consistent with the majority opinion characterizes it as a left plausible reading of the statute. >> So you did not agree with his reasoning in the case that upheld the affordable care act? >> What I said and -- 13:54:04 >> That was sib versus civilians. I will get to king in a moment. >> What I said with sib versus civilians. Which was that the interpretation that the majority of assets construing the mandates to be attacked it rather than a penalty was not the most natural reading of the statute. >> Is still the reading that justice Roberts got to. You also criticized as he pointed out by bringing up king V Burwell, this was in a 2015 national public radio interview, and you acknowledge that people being able to keep their subsidy under the affordable care act was -- and it would help millions of Americans. Yet you praise to the dissent by justice Scalia saying the dissent had "The better of the legal argument," is that correct? >> I did say that, yes. >> Would you have ruled the same way and voted with 13:55:06 justice Scalia? >> Well, senator klobuchar, one of the plus sides or the upsides of being academic is that you can spea for yourself. The professor professes and can opine, but it is very different than the judicial decision process. So it is very difficult for me to say how I would have decided that case if I had to go through the whole process of the judicial decision-making that I was describing this morning now having been a judge for three years, I can say that I appreciate greatly the distinctions between academic writing or academic speaking a judicial decision-making, such that a judge might look at an academic and say you are not on a multimember court. You are not a strained to decide this coming you do not have real parties in front of you consulting with lid against. It is just a different process. >> I view that one so interests leading lean, because you are commenting on the public policy 13:56:08 result which you and my colleagues, the Republican side have said should not be a public policy and you said, okay, that is okay, but then you were really clear on your legal outcome in terms of your view of whose side you were on. You were on scoliosis died, and --Scalia's side, which would have kicked millions of people off of their health care, and that would have taken them off of their subsidies. The dichotomy that they are trying to make between policy and legal is that legal decisions affect policy. I am looking at people in my state that will deal with this as the affordable care act if it is struck down paired allies are from St. Paul who was born with cerebral palsy, because of the affordable care act, he is now 16 and is a proud boy seeped O out. Out -- boy scout. And without the ACA, that would 13:57:11 be that orb are not from the suburb of St. Paul whose daughter has multiple sclerosis depends on benefits under the ACA. Lily I know who has a 21-year-old son with autism and needs her children to stay on her insurance until she is 26. Melanie, a senior from Duluth, being treated for ovarian cancer and needs access to the affordable care act. These are real world situations. And I get that you are not saying how you would rule on these cases, so what does that leave us with to try to figure out with what kind of judge you would be? And I was thinking last night when I was growing up, we would go to norther Minnesota, and we did not have a cabin, but we had friends that did, and we would go on these walks in the woods with my mom, and she loved to show all of the tracks on that path, whether they were deer tracks and she would have us 13:58:11 figure out what they were, elk or a bear, and we would follow these tracks down that path. And he would always think that there would be a deer around the corner that we would see? And very rarely was there one, but we would follow these tracks. And when I look at your record, I just keep following the tracks. That's what I have got to do. So when I follow the tracks, this is what I see. You considered justice Scalia one of the most conservative judges in the history of the supreme court as your mentor. You criticize the you criticize the decision by Justin Roberts holding the affordable care act. You criticized the reasoning. You said in another case about the affordable care act that you liked the legal reasoning that he had the better legal 13:59:13 argument, justice Scalia had the better legal argument. You have signed your name to a public statement featured in an ad, a paid ad, the call for an end what are called the barbaric legacy of roe V. Wade. Which ran on the anniversary of the 1973 supreme court decision. You disagreed with long-standing precedent on gun safety which said felons shouldn't be able to get guns, something that was pretty important to me when I had my old job in law enforcement. It's something senator Durbin asked you about. You suggested you agreed with the dissent in the marriage equality case that it wasn't the role of the court to decide that same-sex couples have the right to be I think this was in a lecture you gave were you said the dissent view was that it wasn't for the court to decide. People could lobby and state legislatures. All this takes me to one point if I follow those tracks on that path. It takes me to the point where I believe that I think the American people have to understand that you would be the polar opposite of justice Ginsburg. She and justice Scalia were friends, yes, but she never embraced his legal philosophy. So that's what concerns me. I want to turn to an area where I think justice Ginsburg, the seat we are considering you for, is truly a hero. That's the area of votin rights. That's the area of elections. I think, went to the president say? He said September 23, 2020. 14:01:05 "I think this," he means the election, "We'll end up in the supreme court and I think it's very important that we have nine justices." 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. That's what's on the mind of the man who nominated you for this job. Then he said on September 29, 2020 "I think I'm counting on them," he met the court "To look at the ballots." So I know you said earlier and questions from senator Leahy that you're not going to commit to whether or not you are going to recuse yourself for any kind of an election case. I do want to point out that as the president has said and as he 14:02:05 has nominated you that people are voting right now. They are voting, as I said, in droves. You know how many states or people are voting right now, judge? I think one of my colleagues said it. >> I don't know. >> More than 40 states people are voting right now as we speak. I think something like 9 million votes have been cast. Do you think it's faithful to our democratic princips to fill a supreme court vacancy this close to an election when people are still voting? >> Senator klobuchar, I think that's a question for the political branches. >> Okay. That's your right answer in that way. Beyond this immediate election, I want to turn to the supreme court's critical role when it comes to the right to vote. This area where justice Ginsburg 14:03:06 was such a champion. Senator Durbin went over your dissent at length in Kanter V bar, where you drew a distinction between individual rights and civic rights. You wrote that historically felons should be disqualified from exercising certain rights like the right to vote and to serve on juries. My question is, this next line where you said these rights belonged only to virtuous citizens. What does that mean? >> Senator, I would need to look at the article to clarify that as I'm sitting here I don't think I said felons should lose voting rights. I think what I was talking about is the 14th amendment. >> It wasn't an article, just to be clear, right? This is your dissent. >> Sorry, my dissent. 14:04:06 >> Your dissent in Kanter V. Barr. Felons could be disqualified from certain rights like the right to vote. Apart from that clause, you said these rights belong only to virtuous citizens. That's what I'm trying to understand what that means. >> The argument in the case, those were challenging haller and those arguing on the side of the government in the Kanter case is that the second amendment is a civic right. That's how the supreme court itself frames the debate, as a distinction between civic rights and individual rights with voting being a civic right. In historical literature that was what was at play in that case. >> How do you define the word virtuous? It doesn't appear in the constitution. I want to know that means. We are living in a time or a lot of people are having their voting rights taken away from them. What's virtuous? 14:05:07 >> Senator, I want to be clear that that is not in the opinion designed to denigrate the right to vote which is fundamental. The distinction between civic and individual rights is one that is present in the courtsdecisions and it has to do with the jurisprudential view. The virtuous citizenry idea is historical and jurisprudential. It doesn't mean I think anybody gets a measure of virtue and whether they are good or not and whether they allowed to vote. That's not what I said. >> Let me ask this in a different way. Let's go to the real world. In justice Ginsburg dissent in Shelby or a 5-4 court struck down a key provision of the voting rights act, she described the right to vote as a fundamental right in our democratic system. I assume you agree with this because you just said you agree with the concept that it's a fundamental right. >> As I just said, yes, repeatedly said. >> Okay. She also wrote in her dissent that the constitution uses the 14:06:09 words right to vote in five separate places. 14, 15, 19, 24th amendments. Each of these amendments contains the same broad empowerment of congress to enact appropriate legislation to enforce the protected right. The implication is unmistakable. Under our constitutional structure, congress holds the lead reign I making the right to vote equally real for all U.S. Citizens. Do you agree with justice Ginsburg's conclusion that the constitution empowers congress to protect the right to vote? >> Senator, that would be listening in opinion with me on whether they dissent or the majority was right in Shelby county. I can't express a view on that, as I've said. It would be inconsistent with the judicial rules. >> Here's my problem, so you go out of your way in the case that dick Durbin was discussing to make this distction between voting rights and gun rights. But now you won't say whether or 14:07:09 not you agree with Ginsberg. My view is based following the tracks on this case, that you are most likely with the majority. But I know you're not going to answer this. What I do want to know is this. This is where it's -- it gets interesting because of what justice Ginsburg predicted and that dissent. According to the Brennan center, over 20 states since that case came out that took away part of the protections in the voting rights act, over 20 states have now made more restrictive voting lot than they did before that case. Doesn't that suggest to you that justice Ginsburg had the better of the argument when she wrote that throwing out preclearance when it's worked and continue to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet. Do you think that that's true? It seems to me that the proof is 14:08:13 in the pudding. Basically this rainstorm that she said would come has come with all of the states including a number of them that my colleagues over there represent have enacted stricter laws as it happened. >> Senator klobuchar, I want to clarify that I was answering senator Durbin's question about the second amendment but refusing to answer yours. I wanted to clarify that I have written Kanter versus Barr so that's why I was talking about it. I didn't write Shelby. I can't really talk about it. Anything that I have written about or talked about I would be happy to answer your question. >> All right. But again, it seems to me you went out of your way on that case. This is a case that's so real for so many people right now. While you can say it's a fundamental right, the issue is that this case in the voting rights act are so key. Let me say why. We are talking about the entire foundation of our democracy 14:09:15 here. For centuries, Americans have fought and died to protect the right to vote. What matters is not just what you say about it being fundamental. It's what you do. States like North Carolina, Louisiana, South Carolina, Tennessee have policies that make it harder for people to vote. It's a real world thing before the supreme court. In fact back in may when voters in Wisconsin were standing in line in the middle of a pandemic in homemade masks, in garbage bags in the middle of a rainstorm just to exercise their right to vote, 70 of them got covid because we didn't know enough about it back then. Because the president hadn't told us what we knew and we didn't know enough to protect those voters. It ends up at the supreme court. What did justice Ginsburg do? When the Republican appointed majority on the court ruled that voters in Wisconsin could not have more time to get their ballots in during the pandemic, she called them out in her dissent. 14:10:17 In her blueprint for the future. She said the majority opinion boggled the mind. So what boggles my mind, two weeks ago the U.S. Supreme court reinstated the South Carolina report requirement that mail-in ballots must have witness signatures in the middle of a pandemic. You've got to go and get a witness in Texas, Republicans have argued that the pandemic wasn't a good enough reason to let people under age 65 vote by mail despite the fact that over 42,000 Americans under 65 have died from covid. The governor Noem is right now forcing that state to have only one ballot box for county. Including in Harris county. For those of you who thought a judge took care of it, he did but then yesterday 3 Trump appointed judges came in and reversed it we are back to one ballot box for people who drop their 14:11:18 ballots in the county of 4.7 million people. In Tennessee, Republicans have tried to prevent ballot drop boxes I know. We had this state at a witness. They had argued in court that covid-19 is not a valid excuse to vote by mail. In North Carolina and the supreme court struck down core component of the voting rights act. What happened? States like North Carolina passed laws that were so egregious to make it harder to vote that the fourth circuit struck down their law and noted that it targeted African-Americans with almost surgical precision. So that's what the stakes are and that's why not having justice Ginsburg on the court right now is so frightening to so many Americans out there. That's why we are asking you these questions about voting. So let me turn to another election question, gerrymandering. In 2015 justice Ginsburg wrote 14:12:19 the majority opinion in Arizona state legislature V Arizona independent redistricting commission holding that it was constitutional for the people of Arizona to amend the state constitution to establish an independent redistricting commission. Because of this case and justice Ginsburg's opinions, many argue now that Arizona has fairer electoral maps. The decision was 5-4. Here's your example. Now justice Ginsburg and justice Kennedy are no longer on the court. My question is this. Most state legislators abide by their own state's constitution when exercising their authority over the election clause? >> Senator klobuchar, that would be eliciting an opinion about me about whether I agreed or disagreed with the result in that case. >> Is a constitutional for voters to amend the state constitution to establish specific processes for elections like the voters in Arizona did 14:13:21 to stop gerrymandering? >> Again, you're asking me for review on that particular case. Justice Ginsburg herself gave the most famous articulation of the principle that constrains me from doing so which is no hints, forecasts or previews. I can't express a view on how I would decide any questions that would provoke by that application of that precedent to a later case. >> Last week a contractor from outside of my statements on a started recording poll watchers with special forces excretes. To protect polling locations in my state. Clear voter intimidation. Similar efforts are going on around the country solicited by president trump, false claims of massive voter fraud. Something many Republican leaders including the former head of the Republican party, including governor Kasich, including sitting 14:14:21 senator Romney. They made a very clear it's not true. As a result of his claims, people are trying to get poll watchers, special forces people to go to the polls. Judge Barrett, under federal law is it illegal to intimidate voters at the polls? >> Senator klobuchar, I can't characterize the fact in a hypothetical situation and I can't apply the law to a hypothetical set of facts. I can only decide cases as they come to me litigated by parties on the full record after fully engaging precedent, talking to colleagues, writing opinions. I can't answer questions like that. >> I'll make it easier. Outlawing out any who intimidates, threatens, courses or attempts to intimidate threaten or course any other person for the purpose of interfering with the right of such other person to vote. This is a law spent on the books for decad what you think a reasonable 14:15:22 person would feel intimidated by the presence of armed civilian groups at the polls? >> Senator klobuchar, you know that is eliciting, I'm not sure it's eliciting a legal opinion for me because a reasonable person standard as you know is more common in the law. Or just an opinion as a citizen. It's not something really that's appropriate for me to comment on. >> Okay. Here's one that I think it is. Selection of electoral college electors. You know that each state has laws that dictate how electoral college electors are selected. Judge Barrett, 1932 the supreme court in a case involving my state ruled that the Minnesota state legislature could not change election rules unilaterally. Do you agree that the unanimous opinion in smiley V Holmes which is never been questioned by any other supreme court case is settled law? >> I will say two things. First of all, I was not aware of 14:16:22 that case. Secondly I can't comment on the precedent. >> Why don't we end there with precedent questioning that's a good way to end. You rode in your 2013 Texas law review article that you tend to agree with the view that when a justice's best understanding of the constitution conflicts with supreme court precedent or case law, it's "More legitimate for her to follow her preferred view rather than apply the precedent. Quick what I want to run through a few examples. Brown V board of education. The 14th amend that private it states from segregating schools under the basis of race. Is that precedent? >> Well, that is precedent. As I think I said in that same article, it is super precedent. People consider it to be on that 14:17:22 very smallest of things that are so widely established and Agre upon by everyone. Cost for its overruling simile don't exist. >> Okay. You also separately acknowledged that in planned parenthood case, supreme court controlling opinion talked about the interest on roe V. Wade which you treated in that case as super precedent. Is roe a super precedent question Marc Siegel how would you define super precedent? >> I'm asking you. >> People use super precedent differently. The way that I was using it in the article that you're reading was to define cases that are so well-settled that no political actors and no pulley both seriously push for their overruling. I'm answering a lot of questions about roe vs. Wade which I think indicates roe vs. Wade doesn't 14:18:23 fall in that category. Descriptively means it's a case, not a case that everyone has accepted. >> Here's what's interesting. You said that brown is, and I know my time is running out, is a super precedent. That something the supreme court has not even sad but you have said that. So if you say that, why won't you say that about roe V. Wade, a case that the court's controlling opinion and that planned parenthood case has described as a super precedent. Th's what I am trying to figure out. >> Senator, I can give you the same answer that I just did and I'm using the term in that article that is from scholarly literature. It was one developed by scholars that are certainly not conservative scholars. They take a more Progressive approach to the constitution. Again, you know, as it W said roe is not a super precedent because calls for its overruling haven't seized but it doesn't 14:19:25 mean roe should be overruled. It means it doesn't fall under the small handful of cases that no one questions anymore. >> United States V Virginia military, is that precedent? >> Senator Claude bashar, if you continue to ask questions about super precedent that aren't on the list as a super precedent that I discussed in the articles that are well acknowledged in the constitutional law literature, every time you ask a question I will have to say that I can't grade it. >> Then I am left with looking at the tracks of your record and where it leads the American people. I think it leads us to a place it's going to have severe repercussions for them. Thank you. >> Senator sasse. >> Thank you, Mr. Chairman. Judge, welcome back. I mean this is good news but it might not feel like it after your half done. I am 11th of 22. Mr. Chairman, before I begin my questioning I would like to ask unanimous consent to admit to the record a letter from the 14:20:25 historian at princeton who's written a letter to the committee in response to some of senator Harris' claims about the history of supreme court vacancies going back to the civil war. >> Without objection. >> Thank you. Judge, you have said that the meaning of law doesn't change with time. You've said that's very important. Can you unpack for us why it's so important that the meaning of a law doesn't change with time? >> Sure. Because the law stays the same until it's lawfully changed. If we are talking about a law that has been enacted by the people's representatives or gone through the process of constitutional amendment or constitutional ratification, it must go through the lawfully prescribed process before it's changed. Article five in the context of the constitution. Bicameralism and represent in the statutes. It's not up to judges to short circuit the process by updating the law. That's your job. >> But laws clearly are written 14:21:25 in a context and then the circumstances to which those laws are applied would change. Does the fourth amendment have nothing to say about cell phones, unreasonable search and seizure was obvious he not written in a time when they imagined mobile technological devices that edited our kids. As the fourth of them that have nothing to say about cell phones? >> The constitution, one reason why is the longest lasting written constitution in the world is because it's written at a level of generality that is specific enough to protect rights but general enough to be lasting. So that when you're talking about the constable banging at your door in 1791, and search and seizure. Now we can apply it. Carpenter versus United States. Cell phones. The fourth amendment is a principle. It protects against unreasonable searches and seizures when he doesn't catalogue the instances in which an unreasonable search or seizure could take place. 14:22:28 You take that principle and then you apply it to modern technology, like cell phones or when technological advances enable someone with x-ray vision to see in your house so there's no need to knock on the door. I think I could still be analyzed under the fourth amendment. >> I think this is a useful place to explain to the American people what originalism is and why it's a mistake to view it as a Republican position. I think originalism is part of the jurisprudential debate. It's not part of a policy continuum between Republicans and Democrats. It's something that's useful for everybody who believes that three branches of government have two that are political and one that is not. Maybe it's useful to back up and say when you define yourself as an originalist, what does it mean and how is it going to relate to that stiction between principles that are timeless but the applications that are clearly going to change by 14:23:28 circumstance. >> Right. Originalism means you treat the constitution as law because it commits these texts to writing. In interpreting that law you interpreted with the meaning people would have understood it to have at the time it was ratified. The reason you do that is because otherwise as I said, the law stays the same until it's lawfully changed. Otherwise judges would be in the constitutional convention business of updating the law rather than allowing the people to take control. In a case of the constitution, as I've said with the fourth amendment, many of its principles are more general. Unreasonable searches and seizures. Free speech, those are things that have to be identified or fleshed out or applied over time so the fact that there wasn't the internet or computers or blogs in 1791 doesn't mean that the first amendment free speech 14:24:30 clause couldn't apply to those things now. It enshrines a principal and we understand the principle as it was of the time. But it's capable of being applied to new circumstances. >> When you define yourself as an originalist, what are the other schools of thought that are adjacent to it? How do you think about the debates among those with other people that are now with you on the seventh circuit for instance? >> Sure. Senator sasse, I think one thing worth pointing out is in the academy, in the event where I spent a large portion of my career, originalism is not necessarily a conservative idea. There is a whole school of thought. Originalist are diverse class and there's a school of originalism that's more of a Progressive originalism. It's committed to keeping the 14:25:31 constitution's meaning, interpreting text the way all originalist due to say that it was, has the meaning it had time it was ratified. But they tend to read at a higher level of generality. All originalist don't necessarily agree. In fact, there is an atavistic elite group called the constitution accountability center which has routinely filed briefs that calls itself, it writes briefs in support of originalism. I don't -- probably people think it's only conservatives who are originalist. Actually it's more widely accepted than that. I think if you think about different strains of approaching constitutional text, originalism is one. All judges and justices take account of history in the original meaning. It's just that some weight it differently whereas originalists would give it dispositive weight when it's discernible. Other approaches to 14:26:31 constitutional interpretation may take a more pragmatic view and say it some instances that may have been the historical meaning but that's an uncomfortable fit for current circumstances, so we will tweak it a little bit too adjusted to fit the circumstances. Sometimes it's called living constitutionalism. The constitution can evolve and change over time. Something that's called a more pragmatic constitutionalism. >> I want to make sure we establish this fact clearly together. One of the things that I think is really unhelpful for the American people when they see hearings like this, some of the last -- over the last 20 years, there's an assumption that those of us who've advocated for you of the course of the last three years must be doing it because we know something about your policy views and we've seen the beautiful mind conspiracy theory charges that this is about specific outcomes people want. What I want to have the judge who doesn't want to take away 14:27:31 the job of a a legislature accountable to the people. I want to be sure that the political branches that are accountable to the people because they can hire and fire us are the places where policy decisions are made. What you are seeing is in the legal academy there are people who agree with you on originalism is a broad philosophical school and yet will come out in very different places on the outcomes of particular policy positions. >> That is what I'm saying. >> On the notre dame law faculty when you were up for the vacancy on the seventh circuit three years ago, the notre dame law faculty as I understand the letter that we got from them here had people unanimously recommend you across the faculty and I would assume there's a pretty way view of policy on the notre dame law faculty. >> There is. >> People can affirm that you know what the job of the judges. You have the judicial temperament and modesty and humility about the calling and they are comfortable with you even though they don't think they might agree with every 14:28:33 policy view you have. >> I hope that's what people think because that's what I have always driven to do. In my time as a judge, my job, my boss is the rule of law, not imposing my policy preferences. >> Can you tell us what the black robe is about? Why do judges in our system or ropes? >> Judges in our system more black robes and they started wearing black robes actually because chief justice John Marshall started the practice in the beginning. Justices used to wear colorful robes that identified them with the schools they graduated from. John Marshall decided to wear a simple black robe. Pretty soon the other justices followed suit and now all judges do it. I think the black robe shows that justice is blind. We all dress the same. It shows once we put it on, we are standing united symbolically, speaking in the name of the law, not speaking 14:29:34 for ourselves as individuals. >> Thank you. You're questioning from chairman graham this morning talked about the judicial decision making any started with four steps and added a fifth and then eighth sixth grade being a reactive branch is really reactive. Can you explain what it means that the branches reactive? >> Article three of the constitution said courts can hear cases or controversies. A judge can't walk in and say I feel like visiting the question of health care and telling people what I think. We can't even think about the law or how it would apply until litigants bring a real-life case with real-life parties in a real-life dispute before us. The material that we have two decide that dispute is what comes from you. It's the statutes that you have. We don't get to come up with the policies and see our wishes become part of the United States code. We react to the litigants who 14:30:34 bring cases before us and we apply the laws that you make. >> What are the steps inside those article three courts beforee get to a situation where the supreme court hears a case? What's unique about the supreme court? >> The supreme court obviously sits atop the federal hierarchy of the judiciary. The supreme court. My court, the seventh circuit, every time someone loses in the district courts which are the trial court, they can appeal. We take every single appeal that comes. The supreme court works differently. The supreme court takes cases when it needs to most frequently the reason it takes them is to resolve a division among the courts of appeal or the state supreme court. Supreme court gets about 8,000 petitions a year. They hear about 80 cases a year. It's discretionary. >> So it's a reactive branch in its after a process where there's a statute that's been
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