SENATE JUDICIARY CMT HEARING - AMY CONEY BARRETT CONFIRMATION 1520 DIAS CHAIRMAN
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SENATE JUDICIARY COMMITTEE CONFIRMATION HEARING ON THE NOMINATION OF JUDGE AMY CONEY BARRETT TO THE SUPREME COURT
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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
QUESTIONING CONTINUES WITH SENATOR JOSH HAWLEY
JUDGE BARRETT SPEAKING
>> What I like to say about that is high sign that almost 15 years ago and my personal capacity still is a private citizen and now I am a public
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official, so while I was free to express my private views at that time, I don't feel like it is appropriate for me anymore because of the Canons of conduct to express an affirmative view at this point in time, but what that statement plainly says it is when signed that statement, that is what I viewed at that point as a private citizen.
>> And I'm not aware of any law or provision to the constitution that says that if you are a member of the catholic church and adhere to the teachings of the catholic church or you have religious convictions in line with those of your church teaching that you are therefore barred from office. Are you aware of any constitutional provision to that effect?
>> I would think that would make it unconstitutional.
>> Let me ask you about that since you bring it up. Article six says no religious test shall ever be required in the qualification to any office or public trust under the United States. Can you just give us your sense as a constitutional expert, scholar, and judge now of the
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significance of article six for our constitutional scheme?
>> It prohibits this body, prohibits the government generally from disqualifying people from office because of their religious belief.
>> And it guarantees, doesn't not, the freedom of religion? It is amendment one, the first amendment will go on to talk explicitly and I want to ask about religious liberty but article six is significant in that it sets out one cannot be -- no American citizen can be kept out of office based on his or her belief. You don't have to go and get someone's approval and certainly not someone in government over what you believe clement doesn't meet this test or not, you don't have to get any signoff sent any kind of sign offs are explicitly ruled out by the constitution. It is at fair characterization?
>> And makes claim that the nomination or belief cannot be a reason to disqualify someone.
>> That's why I continue to say
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it is vital that we underline in the constitution with this clause and insist that it be applied in the context of your confirmation and every nominee for every high office comes before this committee there are no religious test for office and the attempt to smuggle them in even in the midst of this committee must be resisted on the basis of the constitution itself. Let me ask you about the first amendment, the free exercise of relion and is of course how the first amendment begins, congress should make no law respecting an establishment of the legion or prohibiting the free exercise thereof. Tell me what you think this says about the place of religious observance in American life and its significance. Why is it protected like this in the first amendment. What do you draw from that?
>> I think its presence in the bill of rights like all of our rights shows that it was one that the people for generations
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beginning in 1791 considered essential to being a free people.
>> And there's no indication from the constitution that religious believers are second-class citizens, is there?
>> The free exercise certainly suggest to the contrary.
>> The free exercise clause and first amendment suggest that the exercise of religion, worship, religious belief gets special protection. Is singled out here for protection along with immediately after speech, press, the right to peacefully assemble, religion is given a special place which the United States supreme court has recognized. Let me ask you about attempts to disfavor religious believers on the basis of faith. Is it your understanding, can a government at any level, federal, state, municipality, can they treat religious believers differently, can they single them out for disfavor versus a nonreligious group, is not permissible in our
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constitution?
>> That's a complicated question because there's a lot of doctrine surrounding that and that question would come up in a case with facts and it would require the whole judicia decision making process so it's not a hypothetical that I can answer.
>> Let me ask you about the court's decision, a unanimous decision which touches some of these questions in which answer questions about a church's ability in any house of worship to hire and fire their ministers with those who perform religious functions and religious services and in that unanimous decision, the court says that houses of worship are different, that they are unique and they are given special protection under the first amendment and therefore they must be afforded special status. They have to have the ability for instance to hire and fire ministers, those who perform religious functions, the state and government cannot interfere with that. Do you agree with the teaching of that case?
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Do you think that case remains good law and is a significant decision?
>> Ihink the way to answer that question is I can't grade precedent, but I can talk about precedent from my court, so I was on a panel that decided a case which applied it to a board situation of a jewish school which had a fire to teacher, and the teacher sued, and the question was whether that school was entitled to treat her as a minister under the ministerial exemption recognized. And my court, the panel that I was on, says that she was a minister, and we took the factors and said nothing was a bright line test, you look at the cluster as it was designed to give religious institutions the freedom to hire and fire
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their ministers and in this case, one of the jewish faith as consistent with their practice of their faith. And that view was embraced by the supreme court last term.
>> I think it's vital in this time in this season where we are seeing many challenges to religious Independence on the many challenges to the ability of churches to conduct worship on equal terms as secular organizations at the supreme court's unanimous decisions in this area, the Trinity lutheran church switch was not unanimous but W recent very important case as well, I would say for myself I think the lines of the supreme court has drawn regarding the first amendment and the status of houses of worship, regarding the rights of religious believers that now more than ever, it is vital that those be respected and that the constitution be fully enforced and that the line of cases that
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is now multi-years old and the supreme court is set out to be followed. I certainly hope that you will respect and apply that precedent going forward and I don't have any reason to think that you won't. Let me shift gears and ask about another attack that has been made on you today. The case we've heard about senator Durbin, the Cantor case first of all is a case about the second amendment, the right to keep and bear arms. And it's about whether or not someone who had been charged and convicted or pled guilty to a felony could keep and bear arms under certain circumstances. Is that a fair summary? Now, I have heard repeatedly from our democratic colleagues that you write
in your dissent that the right to keep and bear arms is an indidual right but the right to vote is not an
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individual right, but maybe I'm reading a different opinion and that's not what you say in the opinion that I see, for page 50 of your opinion or of the joint opinion, you refer to civic rights, voting rights and civic rights and say they are individual rights. A moment later, you say for example, the right to vote is held by individuals so that set the record straight here. In this case, you say the right to vote is an individual right, that correct?
>> That is correct.
>> And the distinctionetween a civic right and the second amendment has to do with the purposes of that right. First of all, that's not a distinction you invented, is that correct? Remake that is correct.
>> You are replying to a chain of cases.
>> Also the arguments the litigants made.
>> It talks about whether the right to vote, the civic purposes are and gives us a
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stake in our democracy. Is that fair to say? You never at any point and say of the right to vote is secondary or less then, less fundamental than any other right. Is that fair to say? In fact, your whole point in this case which was a fundamental rights case and is not a voting rights case has nothing to do with voting rights, your whole point is that you think that your colleagues on the seventh circuit actually constricted fundamental rights to narrowly met as the supreme court of the United States, that the right to keep and bear arms is a fundamental right and you think in this case your colleagues were constraining that fundamental right to narrowly shedding some people out of it. Is that fair to say?
>> We did disagree about the scope of it.
>> Just to make the record perfectly clear, the supreme court has said over and over that the right to vote is a fundamental right and I think you have a firm that and recognize today, you've said
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that his supreme court precedent. Am I correct about that
>> Greg: They've set up repeatedly they adhere to the one person, one vote standard as baseline, the touch tone, the keystone to that entire doctrine. You might have that correct?
>> That is correct.
>> Nothing in your opinion challenges that, nothing?
>> Not one iota.
>> I am glad we are clear on that. Senator Durbin said in part of his line of questioning on this, suggested that perhaps that here opinion in this case somehow which is nothing to do with voting rights makes you friendly to what he characterizes attempts to deny people the right to vote on racial grounds. He went on to say that we all come to, every judge, all of us who come to the law, every judge who comes to the bench comes to the bench and cases with their own individual experience and viewpoints let's talk about that for just a second if we could when it comes to the fraught but vital issue of race and your own
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experience with that. You when your husband are the parents of a multiracial family.
>> Yes.
>> Can you give us some sense in your personal experience with that has been like for you, what that means to you, what experience you bring to the bench because of your experience as a parent in unique context?
>> I think I could say how it has shaped me as a person. Has certainly whenever you have the life experience that makes you acutely aware in your interactions with other people, it gives you empathy for them in the same is true of our having a son with a disability. But I want to make very clear, senator Hawley, that while my life experiences I think I hope have given me wisdom and compassion, they don't dictate how I decide cases.
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Because as we discussed before and it has been discussed a couple of times, sometimes you have to decide C in ways that you don't like the results a while I hope my family has made up me a better person in my children definitely have given me a new perspective on life, still in applying the law and deciding cases don't let those experiences dictate the outcome.
>> You will follow the law wherever the law leaves.
>> Yes.
>> Which is a good way to bring us back full circle where he started about your own Independence, you have cultivated over the course of your various distinguished career a reputation for original thinking, for Independence, for I would say courage and toughness, and you've never -- I see no evidence in your record that you've ever compromised, kowtow it, or bend your position to the whims of other people, especially people in power based on what they wanted you to do or expect you to do or told you to
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do. Is that fair to say? I miss something?
>> I think that is fair to say.
>> I admire the ways you answer these questions in your forthcoming on this and with that, Mr. Chairman, you will back my time.
>> Thank you to senator Hawley. We will reconvene in 20 minutes, and we will go to about 6:30 and take a 30 minute break to have some dinner, and come back and finish up found one today. So a 20 minute break.
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--
>> Whether you would participate in the decision involving the upcoming election if you are
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confirmed, I continue to believe that you were to participate in a decision involving that election, it would do enduring explosive damage to the court. I think you know it would be wrong. Not because of anything you've done. In fact, I am not raising the issue of whether you've done any sort of dealer cmitment because of what Donald Trump has done and my Republican colleagues because they have indelibly put that issue your integrity through their statements, the president has said that he is putting you on the C court as the ninth justice so you can decide the election. He's been very clear and transparent. And the American people are not
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dumb, they are watching and listening, and if you were to sit on this case if it goes to this supreme court, the American people would lose faith and trust in the court itself. Would be a dagger at the hrt of the court and our democracy this election is decided by the court rather than the American voters, so I wanted to begin by making that point and then go to again, the real people who are really in this room with us and who will be affected by you as a justice. Yesterday, I introduced you to Connor, he's ten years old, I was with him for his birthday, a remarkable champion. He was diagnosed as you may rem duchenne muscular dystrophy at age four and his parents were told to take him home and give them a good life
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because he would soon lose his ability to walk, told his muscles would get so weak he would eventually lose his ability to smile, and he still smiling. What lies behind that smile is untold pain, physical pain, the English of going through the needles and the prodding and the treatments, but for his family, it's also the anguish of wondering whether they'll be able to pay for treatment that has kept him alive and whether he will be with them for all of life's milestones. They sent me a letter that they asked me to share with you
saying you, judge Barrett, please protect Conor. And they wrote also for millions of other Americans, 135 million Americans, many of them children just like Conor but also Christine Miller from Bloomfield Connecticut was diagnosed with a thyroid condition, it was only discovered because of the ACA which gave her affordable coverage for the first time in a long time using Connecticut's exchange, and they wrote for people like Julia in Cheshire Connecticut, she suffered from headaches for years, and put off and typical uncommon for people, put it off. When Julia finally saw Dr. Still
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without insurance, learned she had a brain tumor and was eligible under Connecticut's medicaid expansion program, which was created by the affordable care act. In her words, it was a godsend. I read the stories in part because as you know, I'm sure, protection for people who suffer from pre-existing conditions is in fact on the line in this case that will come to the supreme court only a week after the election. I want to be crystal clear because you stated to senator Feinstein that -- and I'm going to quote. "So far as I know, the case next week does not present a challenge to pre-existing conditions coverage or to the
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extreme lifetime maximum relief from a cap." And technically, you're right. But if the trial court is upheld, and there is no severability, the entire act goes down that is what the trump administration is asking the court to do, that's what the plaintiffs want done. Correct?
>> I gather that senator coons showing the brief of the litigating position with the department of justice?
>> I want to move on to another health care case. And this one involves some of
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the letters that senator Hawley was mentioning, and I feel I need to raise them because senator Hawley asked about them and so did senator Leahy he, and I want to just clarify what they mean, and I want to make absolutely clear, I detest and oppose any religious test. I am not asking you any questions about your religious beliefs. I am going to be asking some questions about your legal positions so in case I am unclear in any of my questions, I want you to tell me. You signed onto this 2006 open letter sponsored by an organization then known as the St. Joseph's county right to life which was published in the
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South Bend tribune. Is that the letter that senator Hawley was mentioning?
>> I believe this statement is senator Hawley read the language. I can't remember it verbatim but something like we support the right to life from fertilization to natural death, yes.
>> The letter and add referred to roe V. Wade's legacy as "Barbaric," correct?
>> I don't think that's part of the statement, that's part of the ad that appeared on the page next to it.
>> They appeared side-by-side, correct?
>> I believe it ran that way in the newspaper. I'm not sure I ever saw it in the newspaper, but yes, that's my understanding.
>> That's how it appeared.
>> Yes.
>> The St. Joseph's county right to life sponsor the letter that you signed.
>> I think the
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St. Joseph's county right to life organization was the one who presented the statement that I signed in th back of church.
>> I want to give you an opportunity to clarify you didn't disclose that letter when you were nominated in 2017, did you?
>> I do not and I'm glad that you brought that up because I just want to clarify for the record number one that I didn't have any recollection of that letter. Or statement. A high signed it almost 15 years ago, quickly on my way out of church, and the questionnaire asked me for 30 years worth of material, and I produced more than 1800 pages, so I didn't recall it. After it came to my attention, I went back and looked at the questionnaire and I don't think that particular statement was responsive to question 12 which is I think the closest it would come. I don't think it's responsive but in any event, it is part of
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a public record and I'm very happy.
>> It is in public record now and is a questionnaire as letters. Have you disclosed it now? If you provided it officially?
>> As I said, I supplemented my questionnaire with material that came to light that I think was responsive. That one, and I would be happy to answer questions if you want for the record with more specific detail, but I did not understand that to be responsive to question 12.
>> We know about it only because the guardian made it public, I believe. Let me ask you about another letter 2013, you signed onto this letter regarding roe V. Wade sponsored by the university faculty for life at notre dame, you remember that organization, correct?
>> I do.
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>> The letter describes roe V. Wade as infamous and it stated that the signatories "Renew our call for the unborn to be protected in law." Correct?
>> Yes, I believe the full statement says, testing my eyesight here, our full support for our university's commitment to the right to life because notre dame is a catholic university and embraces the teachings of the catholic church on abortion so as a faculty member, I signed that statement.
>> But you didn't disclose that letter.
>> Again, I produced 1800 pages of material in all six prior nominees have had to supplement because they've overlooked things. Or 30 years worth of material is a lot to try to find and remember.
>> You disclosed it about three days ago.
>> That's when it was brought to my attention. I had no recollection of it and
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it surfaced in the press and so it came to my attention and then I supplemented and I did think it was responsive because it was a statement of an organization in which I was part and I belong to the university faculty for life at the time.
>> If this process had been a little less rushed, you might've had more time to go back and recall some of these documents.
>> All six prior nominees for the most recent six have had to supplement too, so I don't think it had anything to do with time. I think it has to do with the volume of material.
>> When you and I spoke appearing before this committee in connection with your 2017 nomination, I didn't have the benefit of any of these documents although I asked you about right of privacy onthe validity of roe V. Wade.
>> I said when I was nominated to the seventh circuit and saying it again now, I produced all the material that I could find and I conducted searches to try to find things that I forgot
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and I didn't find that. I understand that someone had to manually go to notre dame and look through the back archives. I didn't remember and I couldn't find it. I assure you, I was not trying to hide it.
>> I apologize for interrupting you, pressed for time. Respectfully, I want to share another health care story with you. This is about Samantha, one night in January, 2017, Samantha went out with a few friends and coworkers and she woke up the next morning and a coworker's home confused, scared, covered in blood. She had been raped. And after she was raped, she said she was a zombie, couldn't change clothes, couldn't shower, couldn't drink or think. She wanted this event to be erased from her memory. Samantha's attacker also began stalking her, and she was struggling with depression and
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PTSD. In March, Samantha took a pregnancy test and another and another. They kept coming back with the same result, pregnant. After the horrible violence she faced, she simply couldn't process that she was N regnant. When Samantha shared her story with me, she said I knew if I couldn't end this pregnancy, it would end me. So she decided to get an abortion. In the now as you know, judge, the landmark roe V. Wade decision gave her that option. Gave women the right to decide for themselves whether and when to have a child. Roe didn't compel Samantha to get an abortion, it didn't tell her what she had to do, but it
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gave her that choice. The question that I would like to ask you concerns your legal position. Does the constitution protect Samantha's right to have an abortion?
>> Roe vs. Wade clearly held that the constitution protected a woman's right to terminate a pregnancy, upheld that central holding and spelled out in greater detail the test at the court uses to consider the legality of abortion regulations.
>> I'm asking you this question became the group that sponsored the first letter, St. Joseph's county right to life as it was then known states "Abortion is never the right
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answer, even in cases of sexual assault in the pregnant woman's life is in danger, and the purpose of the letters that you signed seems to be a statement of legal position, but you are saying that there is a constitutional right to an abortion.
>> The statements that I signed from the St. Joseph's county right to life say anything about rape or or anything like that, it confirmed the status of my church.
>> What you were saying is in the constitution, there is that right.
>> When talking about roe vs. Wade?
>> It was correctly decided.
>> What I said was that roe held the constitution protects a woman's right to terminate a
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pregnancy and reaffirmed that holding in many cases after have affirmed that holding again, a woman's health for example, so I think we might be talking past each other because the statements that I've signed were statements of my personal beliefs.
>> Not your personal belief, your honor, your legal position. Are you willing to say that roe was correctly decided? Because that's the essence of the question here.
>> As I've said to others of your colleagues in response to questioning that it's inconsistent with the duties of a sitting judge and as has been the practice of every nominee to take positions on cases that the court has decided in the past.
>> I think Samantha and a lot of rape survivors would be really deeply fearful about that answer
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because it provides no reassurance that you believe that roe was correctly decided. Let me talk about Tracy. I want to tell you about her because she again came to me, told me she was diagnosed with page four endometriosis, and it had caused an ongoing inability to have a healthy pregnancy but as she said, she was one of the "Lucky ones." She had access to care and was able to receive treatment to assist in getting and staying pregnant. And I have encountered and maybe you have, many members of the military veterans who have sought similar kinds of treatment because they suffered wounds of war. Tracy was scared when she saw the executive director of the St. Joseph's county right to
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life recently stated, and I quote, "We would be supportive of criminalizing the discarding of frozen embryos or selective reduction of the ivf process. So Tracy wanted me to ask you and she asked me to pose this question, is it your legal position that making ivf a crime would be constitutional?
>> The statement that I signed as we discussed affirmed the belief of my church with respect to matters of life.
>> I'm not asking about what you signed. I'm asking about your present legal position. He is making ivf a crime constitutional? Go ahead.
>> You are quoting positions from St. Joseph's county right to life and I am not a member of that organization, so I'm not
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responsible for statements that they make. The statement that I signed decide what you when I have discussed and it said nothing further than that. As for what policy positions someone might take as I've said to your colleagues, it's not up to me to be in the business of expressing views, and I am happy to talk about views that I expressed when I was a private citizen I'm a I am a judge, so I cannot publicly express views.
>> Just to be absolutely clear, not asking about the St. Joseph's county right to life for their positions, and I understand you may or may not disagree or agree with them, but your legal position, ivf treatment, and I'm not going to ask again, just this last time, criminalizing it. Would it be constitutional? I think there's a clear answer.
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>> I repeatedly said as has every other nominee who sat in the seat that we can't answer questions in the abstract. I would have to be decided in a court of the judicial process with the case some legislature would have to do that and the litigants would have to come to court, they would have to be briefs, arguments, consultation with colleagues and opinion riding and precedent, so an off-the-cuff reaction to that would circumvent the judicial process.
>> I'm disappointed. I think Tracy would find that response somewhat chilling because she and thousands, maybe millions of women, potential parents would be horrified to think that ivf treatment could be made criminal. And I understand you are not answering the question, but I think she would be deeply
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fearful. Do you think it would be constitutional to make it a crime for doctors for health care providers to provide that care or abortion care?
>> That's a hypothetical question, so as I've said, to give an off-the-cuff response about abstract issues and I should clarify to say it doesn't really matter if they are hard questions are easy questions, just any question that calls for an abstract legal opinion are not considered appropriate for me to give eitr as a sitting judge or as a nominee. Those questions can be answered only through the judicial process.
>> Just to be absolutely clear, there were millions of women like Samantha and Tracy from the veterans I mentioned who are terrified to think that their doctors and health care providers would be potentially
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in jail, at risk of prosecution, doctors who are exercising currently protected rights that Samantha said her life and I believe our health care providers are heroes particularly during the pandemic, but I want to ask you one more question about these documents. In the 2013 letter that you signed, there is the following statement. "We renew our call for the unborn to be protected in law and welcomed in life." What does it mean for "The unborn to be protected in law" is that statement mean there is no valid constitutional protection for an abortion and therefore roe V. Wade should be overturned?
>> I think that statement is an
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affirmation of life, it points out that we express our love and support for the mothers who bear them. Again, it was a statement validating the position of the catholic university at which I worked and support for life and to support women in crisis pregnancies, to support babies, so it is no more than the expression of a pro-life view.
>> I expect we will be talking more about this issue tomorrow. I want to move now to another topic. You and senator Durbin and others talked about your dissent in ka versus bar, and I think your approach here you soups the legislature's appropriate role making policy
judgments in the case of Kanter which by the way you put first on the list of decisions that you thought were most important
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that you have written, is that correct?
>> I don't remember the order in which I listed them.
>> It was first.
>> I accept that, I just don't remember it. I remember listing it.
>> Okay. That decision seems to usurp the legislature's role in deciding who should be permitted to have firearms in him should not because you decided the legislature was wrong to classify felons as not deserving of firearms you decided that when they were not dangerous, they should have that right. That's a policy or legislative judgment, and I think it has huge ramifications for real people flow across the country, and I want to tell you about one of them from sandy hook
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Connecticut, Natalie. Who is shown here with her brother Daniel. Daniel was killed at sandy hook elementary school in Newtown, Connecticut, on December 14th 2012. Daniel was seven. I was there that day. Saw the parents after they learned that they had lost 20 beautiful children. Six great educators died in the firehouse on that day it was unspeakable grief. That grief remains with her. But Natalie like Newtown is resilient and strong in her grief and trauma of spurred hope
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and action and many in young people are leading the movement to deal with the epidemic and scourge of violence in this country. What happened in sandy hook was not an isolated incident, there have been 236 other mass shootings in the last decade, in the last ten years, gun violence has taken more than 354,000 lives in rural communities, urban communities all around the country. And I'm sure in Indiana and South Bend as well. Your opinion in Kanter and goes farther than juice Scalia and you characterized it as radical. Is in effect an outlier, and it is in fact radical.
>> Did I say it was radical in
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the opinion?
>> I think you said "It sounds kind of radical to say felons can have firearms." That's a direct quote.
>> I didn't remember that particular language. I'm not -- I just don't recall it. But I'm not nitpicking about it.
>> We can look it up.
>> That's fine, senator. I don't think you're making it up. I will check it and look it up, but I know that's not the rest of your question.
>> It sounds kind of radical, it is. In fact, no courts of appeals except maybe the seventh circuit has adopted this reasoning.
>> The third circuit I believe has a role.
>> The third, any others? I know there was one circuit that did. Wasn't sure which one.
>> My position was consistent with the third circuit on a
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decision that had already been decided.
>> We had quite a bit of it going back and forth, what this approach does potentially is meaning that Connecticut's gun safety provision that the people of Newtown, Kristin and Michael song on behalf of their son Ethan who perished because of a gun that was unsafely stored. They championed a measure called Ethan's law. Common sense measures that might have prevented the death of Shane Oliver, Janet rice's son, who died on October 20th, 2012. Shane was killed when he was 20 years old in Hartford. He died fighting for his life in Hartford hospital. And measures like the emergency
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risk protection order that Connecticut now has. 19 states have these laws. They've saved lives. And extreme risk protection order laws which helped minimize risk might well be struck down, under the reasoning of your dissent.
>> Respectfully, senator, my dissent would not reach even those issues. My dissent was about the narrow question about whether a felon who had sold fraudulent foot inserts could automatically be disqualified from his second amendment right simply on that basis. It said that guns can be kept out of the hands of the dangerous, and it didn't say anything about other gun safety or background check. Those are all issues that are being litigated across the country and were not at issue in canter.
>> But supplanting the legislator's judgment about
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when -- dangerous people should be protected from themselves, if they are potential suicides as a veteran in Iraq found when his friend was going to take his life, the emergency risk protection order would have been available, deciding what is dangerous, who is dangerous, when weapons should be taken away from them, if the courts are going to supplant supplant the judgments of legislatures, if judges are going -- that's the import of your reasoning in that dissent. It may not have dealt precisely with any of these particular laws, but the reasoning throws into doubt. It raises the risk of many of them and folks who live in Connecticut are terrified of that prospect, at least --
>> It's a tragedy, so I express
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the deepest sympathy for those that experienced that loss there and elsewhere. But canter, you know, I hope you can take some comfort from canter being a much narrower decision. It doesn't have any effect on those sorts of laws. Thank you, senator.
>> Thank you, judge.
>> Senator Tillis.
>> Thank you, Mr. Chairman, thank you, judge Barrett. Mr. Chairman, before I get started I'd like unanimous consent to submit a letter from my primary care physician indicating that I've fully complied with CDC guidelines, being cleared, like 2,000 other nokians yesterday and I'm glad they're healing.
>> No objection.
>> And put forth three letters in support of judge bar let.
>> Also like to cover what senator Blumenthal just did, I think we should go back, I believe you alluded to it, judge Barrett, but question 12 a of the committee questionnaire asked for books, articles,
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reports, letters to the editor, editorial pieces or other published material you have written or edited. Is it fair to say if you signed a petition you did not write or edit any of the petition you signed.
>> I did not write or edit that.
>> It also needs to be restated, I think you alluded to it, but over the last six justices confirmed by this commiee all of them have provided supplemental information, and in some cases after the actual hearing. So I appreciate your being forthcoming, that you've submitted 1,800 pages of documents. Mr. Chairman, just going back, I also wanted to mention that as a part of my journey through my time in quarantine I have enrolled in two studies so far, I'll be giving blood on Friday to enroll in another program at unc chapel hill and I'm scheduled to donate convalescent plasma because this is being aired I hope that anyone who's recovered from covid will do their part to try and heal this country from the health
[4:30:51 PM]
challenges that covid has presented us with. I intend to do my part. I also would like to say, I like to consider the senate an essential business. And I believe that the architect at the capitol and our attending physicians have taken great measures to make sure we can safely come to work and I encourage anybody who works in the senate to come to work. I want to also go back to something that senator Feinstein said earlier and you're not going to have to answer this question. Senator Feinstein mentioned earlier that we've had a surge in applications for guns or purchases of guns. I wonder if a part of that is where we find our society right now. We're seeing great cities burned and looted. And my highway patrol in north Carolina, 75% fewer applications to go in to the troopers academy, and record high requests for retirement.
[4:31:52 PM]
We see that in New York. We see it across this country. I think people are afraid because many people, including people on this committee, are unwilling to condemn the acts of violence in public safety out there and condemn violence against law enforcement, which is rampant. I lost a sheriff's deputy just about a month ago who was shot protecting a family. So yes, senator Feinstein, I suspect that gun purchases are up but I suspect the root cause behind a lot of them have to do with people's personal safety. To your family. I would encourage all your family members and your students who mercifully -- your children who are your students too, who are mercifully taking a break to treat social media like road kill, just don't look at it because if you do you're going to regret it. I am also going to ask unanimous consent to put forth some articles or tweets from prominent people that I think kind of give you an idea of the guerrilla tactics being used
[4:32:52 PM]
right now in the committee, this is sounding a whole lot like a lobbying session. It's almost as if you're being interviewed to become a U.S. Senator to you can decide policy on the affordable care act and a number of other things I'll get to. But behind the curtains we're seeing people say all kinds of things about you. One called you a white colonizer for actually adopting two Haitian children, we have another one calling you a hand maid in a clown car. It will be submitted for the record for the profanity used in there. Another one, that says that, yeah, you're a good mom but that doesn't qualify you as a judge. What qualifies you as a judge is being an extraordinary professor, an extraordinary student and an extraordinary jurist. And I think that these people need to recognize doing the bidding of this committee by attacking you outside of the committee is as bad as them being in this chamber. I also want to talk about the discussion on roe V. Wade and the affordable care act.
[4:33:56 PM]
Senator Feinstein, and I think the same two or three minutes, said that she wanted you to protect roe V. Wade but overturn heller. Those seem to be incongruent, but I'll just leave that out there. They're asking you to basically legislate, I don't want you to do that. When we talk about roe V. Wade the one thing that's conveniently missed about this discussion is something that I think most of the American people are at odds with the position that every member of the democratic conference supports. My granddaughter went to her two-month health checkup today. She weighed in at 10.1 pounds. And you can't see this picture, but I'melling you, from this granddaddy's eyes, she's gorgeous. But she was born three weeks premature and she only weighed a little over 6 pounds. She was discharged from the hospital within 36 hours. My colleagues on the other side of the aisle want to talk about the broad strokes of roe V. Wade. They don't want to talk about the radical policy that would allow the right to take that child away, that I just held in
[4:34:58 PM]
my arms two or three weeks ago and eight weeks ago when she was three weeks premature. Judge Barrett, I believe -- I have complete confidence in your integrity. I have complete confidence that you're going to go and you're going to be a great justice. But I do want to ask a little bit about maybe your experience when you were working for -- actually, I want to start when you were in school. Did you have -- when you came in, you were obviously a brilliant student, you did your homework. We've heard professors attest to your intelligence ask your performance in school. Did you ever go into a classroom where the professor was espousing one position and you were espousing another one and you ended up coming out with a different perspective?
>> Sure.
>> Did you ever change your professor's perspective?
>> I'm not sure about that.
>> Well, that's kind of an unfair balance. Now fast forward to when you were a clerk for justice Scalia. I just saw an interview last
[4:35:58 PM]
week when I was in quarantine of justice brieer talking about these mounds of documents that his clerks would provide him. He would quickly go through them. He said it's actually a fairly quick process to split out the ones with no disputes. You move through it quickly. I understand that justice Scalia, at least in some sessions, would have a mix of clerks, they would be across the ideological spectrum. Was that the case?
>> Not all four of us, he had four clerks and we were not -- we were not all of the same mind, there was a mix.
>> Were there ever cases when you went before justice Scalia and you thought he was leaning one way where he actually listened to the arguments from the clerk and modified his position --
>> No, I think he definitely listened. We would go in before an argument when he was preparing and he would pepper us with questions and go back and forth. He wanted to hear it from all sides and so, no, he
[4:36:59 PM]
definitely -- it was part of the give and take, though, to be clear he was the one with the commission and he was the one who made the decisions.
>> Thank you. The last thing I'm going to say, because I want to yield back more time than most other members, is Mr. Chairman, you opened up this morning talking about the affordable care act. I don't think there's anybody in the U.S. Senate that doesn't want to make sure that every single picture we've seen here that those folks have affordable health care and that they can be cared for but what we have here in the affordable care act is something that is so flawed that the majority of the democratic candidates for president all raise their hand and said it needed to be replaced with something they call medicare for all which could be medicare for none. With know the broken promises if you like your doctor, keep it, or health care, keep it. But thousands of people were forced off their job health care because employers changed hours and instead of working one full-time job you've got to work two full-time jobs because the businesses can't afford it. We've got a fundamental problem
[4:38:03 PM]
here. We need to protect every one of them but we need to Muir that people who have the health plan can afford to use it. The catastrophic situations, thank god it's there for them. But what if they only use it in catastrophic situations, they can't afford the co-pays. We need to fix that. We shouldn't expect the justice or the supreme court to fix it. That is our job. We should all show up here for work and get that done and we should also work onll the other things this country is suffering from, as a result of covid. Thank you, judge Barrett, I look forward to supporting your nomination.
>> Thank you, senator Tillis.
>> Thank you. Senator hirono.
>> Thank you, Mr. Chairman. Mr. Chairman, I want to reiterate my objections to holding this hearing instead of working to provide relief to Americans suffering during this pandemic. Three weeks ago our country crossed a tragic milestone, we lost more than 200,000 Americans
[4:39:04 PM]
to covid-19. That is more than the entire population of the big island in Hawaii. More than the population of Tempe, Arizona, Cedar Rapids, Iowa, Wilmington, north Carolina, Charleston, south Carolina, Waco, Texas, I could go on, 200,000 American lives plus. This is a photo of a memorial outside the white house where president trump held a reckless, superspreader event two weeks ago to announce this supreme court nomination. The memorial shows 20,000 empty chairs. One chair representing ten American lives lost to covid-19. And one of those chairs represents Veronica guivera's grandfather who is pictured here with Veronica. Veronica, who is from Iowa, has
[4:40:04 PM]
experienced the painful impact of the trump administration's failure to address the pandemic. Her family is composed of essential workers who are working on the front lines of this pandemic. Her mother, who worked at a fast food processing facility caught covid-19 at work and was eventually hospitalized. For seven days. Thankfully her mother recovered. But then her grandparents got covid-19, and were admitted to the hospital. And although her grandmother recovered, sadly her grandfather didn't make it. After experiencing all this tragedy, Veronica shared, it's more -- rushing through a supreme court nominee rather than focusing on providing relief to all the hard working people that gave them their current leadership positions.
[4:41:06 PM]
End quote. Many Americans agree with Veronica. They're sitting at their kitchen tables wondering how they're going to buy food, how they're going to pay rent, millions of them are out of -- they don't have jobs. They're going to food banks for the first time in their lives. So rather than coming up with a bill that meets the needs of the urgency of this moment Republicans are just coming up with piecemeal bills. That's because we know that within your own caucus you can't agree on one bill that fits the critical needs of this country. In fact, there are at least 20 Republicans, we heard, who have said we're done, we're not doing anymore to help the Americans who are suffering with covid. So here we are racing forward with this nomination, while the rest of the country is wondering what the heck is the senate doing, particularly the senate
[4:42:06 PM]
Republicans? So I agree with all the people in our country who are asking what the heck? This is hypocritical. This hearing shows the American public exactly what my Republican colleagues' priorities are, ramming through another ideologically driven justice to the supreme court instead of helping the people in our country suffering during this pandemic. Mr. Chairman, I have some letters of opposition to judge Barrett's nomination to enter into the record. These are letters from lamda legal, the Japanese American citizens league, and the national asian-pacific American womens forum joined by 55 reproductive justice groups. I ask unanimous consent to enter these letters into the record.
>> Without objection.
>> Judge Barrett, chief justice John Roberts has recognized that, and I quote him, the judicial branch is not immune, end quote, from the widespread
[4:43:06 PM]
problem of sexual harassment and assault and has taken steps to address this issue within the judiciary. As part of my responsibility as a member of this committee and, indeed, all of the committees on which I sit, to ensure the fitness of nominees for a lifetime appointment to the federal bench or to any of the other positions, for any of the committees on which they appear, I ask each nominee these two questions and I will ask them of you. Since you became a legal adult have you ever made unwanted requests for sexual favors or committed any verbal or physical harassment or assault of a sexual nature.
>> No, senator hirono.
>> Have you ever faced discipline or entered into a settlement related this kind of conduct?
>> No, senator.
>> Judge Barrett, do you think it is appropriate for our justices to consider real world impacts in their decision making as justice Ginsburg noted in a number of her dissents?
>> Well, senator, the doctrine
[4:44:08 PM]
of starry desigh sis is a good example of that because the reliance interests takes into account the real world impact, the way people have ordered their affairs and relied on decisions. There are contexts, yes, in which -- considering part of the doctrine.
>> You've been listening to all of us here yesterday as well as today talk about the real world impact of the striking down of the affordable care act and would all of those impacts be factors that would be important for you to consider should you be a justice?
>> Senator, to be clear, I have the utmost empathy, the stories, you know, that you have told, including the story of Veronica's family are very moving. If I were a justice, the commitment that I would make to you and all people affected by the laws is that I would follow the law as you enacted it and I
[4:45:11 PM]
have no idea. I would not be coming in with any idea. I would do equal justice under the law for all and not try to thwart or disrupt in any way the policy choices that you and your colleagues have adopted.
>> So are you saying that the impact of the affordable care act on the millions of people who rely upon it, that those who you would deem to be policy considerations that we should address?
>> Senator, I think that you choose the law, and you've structured the affordable care act. It's a complex, long statute. I think you set the policy. And then I think when a court has to interpret the statute, or decide how it applies in a certain circumstance, the court looks at traditional legal materials, it looks for the briefs. It listens to the real world impact on the litigants who are before the court arguing the case because every case affects real litigants, every case
[4:46:11 PM]
affects real people. I said in my opening statement yesterday that, you know, when you pass statutes, they're often named for the co-sponsors of the bill. But cases decided by all courts are typically named after the parties. They affect real people.
>> Judge Barrett, so are you saying that all of the stories that we brought forth yesterday and the millions of people who are relying on the affordable care act can rely upon you this those impacts would be considered by you, that you would consider those to be legal arguments that you would consider? Because when you say that you're going to make a decision based on the law, the real life stories that we've been talking about, you would consider those to be part of the law?
>> Senator hirono, every case that comes before a court, because as I was saying earlier, no case comes before a court
[4:47:13 PM]
unless it involves real live people who've had a real live dispute and it is the job of a judge deciding every case to take into account the real world consequences of the parties before it.
>> So does that mean that you would agree with justice Ginsburg that the court should be taking into consideration the real life effect of the decisions that they make? Because she wrote a number of dissents saying that the majority did not consider the real world impacts of their decisions. So are you aligning yourself with justice Ginsburg in terms of what you would consider real life impacts and the effect it would have on your decision regarding the law?
>> Well, senator, I don't know what context -- the particular context in which justice Ginsburg was describing that. I think what I'm trying to align myself with is the law. And that I will take into account all factors, including real world impacts, when the law
[4:48:15 PM]
makes them relevant. As it clearly does, for example, in the doctrine of starry decisis.
>> I'll get to your views of precedent in a moment. I'll give you a real life example of justice Ginsburg? Good year tire and rubber company lily Ledbetter worked for 19 years as an area manager. She was paid less than all of her male counterparts. When she eventually realized this stark inequality, she sued for pay discrimination and a jury agreed but the supreme court kicked lily's claim out of the court for being too late, the conservative majority, including your mentor, justice Scalia, interpreted title VII's 180-daytime limit she should have filed her claim within 180 days of when her salary was decided instead of accepting the common sense approach of viewing
[4:49:16 PM]
her paychecks as on ongoing part of pay discrimination. Justice Ginsburg strongly disagreed with her conservative colleagues' approach to the case. In her dissent she pointed out the many challenges women face in discovering pay disparities including how many companies keep salaries confidential. In a stinging rebuke she said, quote, the court does not comprehend or is indifferent to the insidious way in which women have been victims of pay discrimination, end quote. In another case, in 2018, an emic systems court v.lewis, employees legally underpaid, joined together to receive back pay in court. Tolo block this effort their employers forced them to sign an arbitration agreement prohibiting collective actions. They actually have to sign these arbitration agreements in order to even have a job, keep their job. The majority, including justice Scalia, sided with the company,
[4:50:16 PM]
they interpreted a general federal arbitration law to override two worker protections laws instead of recognizing that the worker protection laws fall sensibly within the exceptions in the arbitration law. Meaning that the worker protections laws should prevail. Again, justice Ginsburg strongly disagreed with the majority's approach the case. In their dissent she pointed out that blocking joint lawsuits would deter most workers from seeking individuals un -- individual unpaid wage claims because of the cost of lawsuits and fear of retaliation. She warned the majority's decision would result in hurting vulnerable, low-wage workers. Now, those are the kinds of real life impacts, the reality of women who are not paid the same as their male counterparts because of sex discriminatio happening that she has no way of finding out about, or of workers who are forced to sign an arbitration clause that overrides worker protection, other worker protection laws.
[4:51:17 PM]
Those are the kinds of real world impacts. Do you think justice Ginsburg was wrong to consider real world impacts? In her decision making?
>> Well, senator, you know, both the case -- you know, you're talking about lily Ledbetter, both that case and epic systems are precedents of the court. And as I've said a number of times during the hearing I can't really comment or grade thumbs up or thumbs down as justice -- put it, prior precedents or say how I would have decided them.
>> They are -- judge Barrett, they are precedents of the court that do not take into consideration the real world factors at play here. And, in fact, in the case of epic systems the court sided with the corporation as opposed to the workers who are trying to remedy a wrong. And in lily Ledbetter, she was totally out in the cold. So, again, the court did not. They established precedent all right, but it was a precedent
[4:52:19 PM]
not based on real life impact. Much as you sit here telling me that you would follow the law, after all, the law, for example, the affordable care act, that law embodies a policy that says we want as many people as possible to be covered under insurance and if the affordable care act is struck down that policy, that law would be struck down.
So the fact that you're not able to -- I think it's pretty clear. Let me rephrase that. You do consider justice Scalia to be your mentor, that your
[4:53:20 PM]
judicial philosophy is in alignment with them and I think we all acknowledge that justice Scalia and justice Ginsburg were at pretty much opposite ends of the spectrum. So since justice Ginsburg made it a policy, her approach was to look at the real world impact, just Scalia's was not. So I'd say that when it comes to the affordable care act the real world policy considerations that will not be taken into consideration by the conservative judges would mean that 23 million people could lose their health care, that 133 million Americans with preexisting conditions could lose critical protections for their health care, and more than 7 million Americans who have tested positive for covid-19 would probably be added to the group of people with preexisting conditions. And millions of Americans would once again face lifetime limits
[4:54:21 PM]
on coverage for essential services. That 8.7 million women would lose coverage for critical maternity care services. And we know that black and native women are two to three times more likely to die than white women from pregnancy related cases, that Americans could lose coverage for essential health benefits like prescription drugs and mental health care, that young adults would no longer be able to stay on their parents health insurance plans until age 26 at a time when our country is dealing with massive job losses. So in my view you have posed an artificial distinction between policy considerations that's left up to us in following the law. Because if your criticism of justice Roberts' decision in upholding the affordable care act, if that was something that he followed he would have struck down the affordable care act.
[4:55:25 PM]
That is -- that is your -- if he followed your criticism of him in sustaining the affordable care act he would have struck it down. So I would conclude that your approach is, in fact, not like that of justice Ginsburg who did care about what would happen. Let me just tell you one story of a person who will be impacted in the real world if the affordable care act is struck down and I know that so many of my colleagues have already established that the predent expects you to strike down the affordable care act but clearly that is why this parole process is occurring so that you can be sitting on that court in time to hear the affordable care act by the supreme court on November 10th. So one of the people who will be impacted is Elizabeth from Texas. She moved to Texas for a job and thought that she would have a stable income and health care coverage and all that changed
[4:56:26 PM]
when her hours decreased and she lost her health insurance. Because she couldn't afford health insurance he couldn't get proper treatment for her asthma. She had to resort to using friends' expired inhalers and over the counter remedies, the ACA allowed her to get health insurance and the ACA helps people with preexisting conditions like Jordan who I talked about yesterday and she has a very rare illness that would require $500,000 per year just for her medication. And were it not for the affordable care act she wouldn't be able to afford it. I mean, who can afford $500,000 a year to keep her going? And also people like Kimberly, I talked about her yesterday. The ACA enabled her to get a mammogram which she wouldn't have been able to get and that mammogram revealed that she had breast cancer and she got a mastectomy. So, you know, this is -- this -- the real life impacts on people
[4:57:27 PM]
like Elizabeth, Jordan and Kimberly where you say you will follow the law it really leaves me wondering whether all of these real life impacts are what you would call within the scope of the law that you would decide should you be confirmed. November 10th, you'll hear the case. You will be deciding on the constitutionality of the affordable care act. And by the way you noted that the issue in the affordable care act was one of -- what was it that you said?
>> Severability.
>> Severability. But the other issue in the affordable care act is the entire constitutionality of the law. Because the district court in Texas -- was correct, in deeming the entire law unconstitutional. In fact, we are facing the entire law falling by the wayside. Let me move on. You've also been asked a lot of questions about whether or not you would overturn roe V. Wade.
[4:58:29 PM]
Clearly president trump expects that you would do so because as you said if we put another two or perhaps three justices on the court that will happen, meaning the reversal of roe V. Wade will happen automatically, in my opinion, because I am putting pro-life justices on the court and a number of us have mentioned that as far as senator Hawley saying I will only vote for supreme court nominees who have explicitly acknowledged that roe V. Wade was unfairly decided but after you were nominated senator Hawley made clear you passed the test, and he said I think your record is awfully clear, that's one where she meets my standard of having evidence in the record, and by the way he noted he expected this evidence in the record, not from your post-nomination assurances to him. So all your prior record, he said, you met his standards. So we usually expect justices to
[4:59:31 PM]
uphold and apply long standing precedent. So was the president wrong in concluding that you would vote to overturn roe V. Wade?
>> Well, senator, again, I can't make any statements, no forecasts or previews as justice Ginsburg put it about any case or any precedent. I will repeat what I've said throughout this hearing that I made no promises to anyone. I have no agenda. There are 598 volumes of the United States reports. That's something that judges build on. Justices don't go to the court to start having a book burning.
>> I know that you have reiterated that time and again. But what we are left with are the positions that you have already taken. So 2006 newspaper ad you signed that said you, quote, oppose abortion on demand and defend the right to life from fertilization to natural death.
[5:00:31 PM]
It's not just the fact that this newspaper ad you joined said what I just read and it said it's time to put an end to the roe V. Wade. In a 2013 speech you gave where you said the roe decision admitted abortion on demand, end quote. After you said you opposed abortion on demand in 2006. So what underscores my concern about your willingness to overturn roe V. Wade, which is really the expectation that the president has, and which senator Hawley fully expects you to do because you have met his litmus test but, you noted starry decisis which is precedent and you have argued a justice's duty to uphold the constitution that she should -- your view on precedent -- that she should, quote, enforce her best understanding of the constitution rather than a precedent she thinks clearly in conflict with it. End quote.
[5:01:32 PM]
So, in fact, you said constitutional cases are the easiest to overrule because you bring your own assessment of what the constitution requires and as you said if a precedent is clearly in conflict with your view of the constitution, then the precedent falls by the wayside. So you did indicate that there are a few cases that are immunized from overturning because they are -- they wouldn't be challenged in the first place, I.e. Brown V. Board of education. But roe isn't one of those cases because we know that there are all kinds of challenges to roe, basically because the states are very busy passing all these laws that limit a woman's right to an abortion. So you also said in that speech that even if roe is not overturned, you said without
[5:02:33 PM]
overturning roe you explained, quote, the question is, how much freedom the court is willing to let states have in regulating abortion. And so there are 14 cases right now relating to state abortion restrictions making its way through the circuit court and some of these are going to land in the supreme court. And these 14 cases include the following restrictions. Six cases involve bans on abortion starting at gestational ages ranging from 6 to 24 weeks. Two cases involving bans on a particular type of procedure, dilation and evacuation. It accounts for nearly all second try mes ter abortions, one involving a requirement that fetal remains be buried or cremated. Four cases with laws on unnecessary requirements on abortion providers like transfer agreements with local hospitals, four cases involve so-called reason bans, two cases related to parental notification and consent. There are real reasons why the American public I concerned
[5:03:34 PM]
that you will overturn roe, or basically strip it of all meaning so that it becomes annulty because you will have these cases that as you say the open question is, how far the supreme court will go in letting states put limits on abortion. So that is why a lot of people are very concerned about your views as articulated pre-nomination, which convinced senator Hawley you met his test. This morning senator Feinstein asked you a question about the supreme court's 2015 decision in a case in which the court recognized the constitutional right to same sex marriage. I was disappointed that you wouldn't give a direct answer on whether you agreed with the majority in that case or if you, instead, agree with your mentor justice Scalia that no such right exists in the constitution. So even though you didn't give a
[5:04:36 PM]
direct answer, I think your response did speak volumes. Not once, but twice you used the term sexual preference to describe those in the lgbtq community, it's an outdated term, used by activists to suggest that sexual orientation is a choice. It is not. Sexual orientation is a key part of a person's identity that sexual orientation is both a normal expression of human sexuality and immutable, was a key part of the majority's opinion in -- which by the way Scalia did not agree with. So if it is your view in a sexual orientation is merely a preference, as you noted, then the lgbtq community should be rightly concerned whether you
[5:05:37 PM]
would uphold their constitutional right that marry. I don't think that you use the term sexual preference as just -- I don't think it was an accident. And one of the legacies of justice Scalia and his particular brand of originalism is a resistance to recognizing those in the lgbtq community as having equal rights under our constitution. In 1996 justice Scalia wrote a dissenting opinion, and roamer V. Evans defending a state's ability to openly discriminate against the lgbtq community, in 2003 justice Scalia wrote a dissenting opinion defending a state's right to criminally prosecute someone for same sex sexual activity. Ten years later justice Scalia, another dissenting opinion, this time defending the federal government's right to deny federal recognition of same sex marriages and of course two years after that -- justice Scalia wrote yet another dissent
[5:06:37 PM]
and this time he argued there was no constitutional right to same sex marriage. Under justice Scalia's philosophy, which you have told us is your own, states could openly discriminate against the lgbtq community, same sex couples could actually be thrown in jail if they engage in sexual intercourse. There are 11 million adults who identify as lgbtq living in this country since it was decided in 2013 -- 2015. Approximately 293,000 same sex couples have gotten married. And many of these people are rightly afraid that if you are confirmed you will join with other conservative members of the court to roll back everything the lgbtq community has gained over the past two decades and pushed them back into the closet. Now two sitting justices are already calling for this to be narrowed if not outright
[5:07:40 PM]
overturned, just last week justice Thomas and Alito issued a statement concurring with the court's decision to deny -- a case involving a former Kentucky county court who refused to issue marriage certificates to same sex couples. They accused the court of, and this is justice Alito and Thomas, they accuse the court of, quote, reading a right to same sex marriage into the 14th amendment even though that right is found nowhere in the text. And these two justices signal that obergerfield is a problem only the court can fix. So coupled with your use of the term sexual preference, coupled with your view on precedence, and that a justice's view, or her own analysis of the constitutionality should overtake or overcome precedence if it's in conflict.
[5:08:40 PM]
So this is why so many people in the lgbtq community are so concerned that you would, in fact, join -- that these two justices have already put out there, that ofbergerfeld will fall by the wayside. Thank you, Mr. Chairman.
>> Thank you. Senator Ernst.
>> Thank you, Mr. Chair. And judge Barrett, thank you so much for being here today with your beautiful family, once again, we appreciate the support that you are showing to judge Barrett by being here today. And judge, I just want to offer you the opportunity at this point, is there anything from earlier today that you feel you need more time to respond to?
>> Thank you, senator Ernst. I would like to just make a quick follow-on to some of senator hirono's comments, one, you know I've said a number of times during the hearing that I
[5:09:41 PM]
can't comment or grade existing precedent and I want to be clear that the point of doing that is not to say whether I agree or disagree with it. It's not to implicitly signal that I do disagree with it. It's designed to be neutral. In saying that I couldn't opine on whether that was rightly decided or not I was not indicating disagreement with it. The point of not answering was to simply say it's inappropriate for me to say a response. And the second point was to say that I certainly didn't mean, and, you know, would never mean to use a term that would cause any offense in the lgbtq community. If I did, I greatly apologize for that. I simply meant to be referring to obergerfeld's holding with respect to same sex marriage.
>> I appreciate the clarification and it goes back to the discussion you had with senator sass on the black robes. When you put that robe on, you are neutral, correct?
>> Yes.
>> Yes, thank you. So I did want to go back,
[5:10:41 PM]
because of the issue of coronavirus has come up, yet once again in the committee room. And I just wanted to make a point, and clarify that the senate GOP did bring up a relief bill a number of weeks ago. And in that bill there was a $300 boost in weekly unemployment insurance benefits. There was a second pass at paycheck program for small businesses. There was additional -- $105 billion for k-12 schools and colleges with new scholarship programs and $15 billion to help working parents find accessible child care options, supports for farmers and ranchers impacted by the pandemic. There was $31 billion for development and distribution of vaccines, drugs and other medical supplies, $16 billion for testing and contact tracing.
[5:11:41 PM]
There was loan forgiveness for the postal service, liability protections for our schools and health care providers. And an expanded charitable deduction for contributions made during this pandemic. And many, many other things. It was a very, very good bill. It was what we could agree upon. But I would note that senate Democrats did block those provisions that would have gone to help families like Veronica and others in Iowa that are suffering from the pandemic. And are, of course, our greatest sympathies to those that have been impacted all across the United States. And so, Mr. Chairman, I would like to enter into the record there's three letters here for the committee and an op-ed, a letter of support from 48 Christian women scholars. The second is a letter from a group of governors all across the country, including our own Iowa's governor Kim Reynolds
[5:12:42 PM]
strongly supporting the nomination of judge Barrett. The third is a record letter from Tracy Lovett who was with judge Barrett while they both skeved on the scotus clerk class of 1998 and also an editorial by Derek muller, a professor of law at the university of Iowa college of law that appeared in the gazette of Cedar Rapids, Iowa and this professor had judge Barrett as his evidence professor at notre dame law school and he does say she treated all law students from all backgrounds with dignity and respect. If I could have those entered into the record.
>> Without objection.
ERNST
>> Thank you. And judge Barrett, I'm pro-life. I am pro-life. And I see that, judged by your faith and as has been aptly pointed out the many times over by our colleagues across the
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aisle, that you are pro-life. But once again can we reiterate your stance as a judge?
>> So as a judge my personal moral beliefs, which I have not, that I can think of, I am not expressing them publicly right now because now that I am a judge I can't sign statements like that one that I did 15 years ago. But my policy views, my moral convictions, my religious beliefs do not bear on how I decide cases, nor should they. It would be -- you know, it would be in conflict with my judicial oath.
>> I know that you consider yourself to be an originalist as you discussed earlier with senator sass. And it seems that adhering to the originalist view would naturally lead a judge to carry out her constitutional duty of impartiality when applying the law. And adhering to this philosophy
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as a judge takes real courage and the courage you have dis played thus far as a federal judge prompted a coalition of groups to send me a letter supporting your nomination. Susan B. Anthony list led this coalition letter that I would like to submit to the committee for the record and I know this is going to make a number of members on the committee just very squeamish because they are a pro-life organization. But, with this in mind, I want to take a moment to read part of this letter. Quote, judge Barrett has proven herself to handle disputes impartially. Approaching cases as a textualist and originalist who loves the constitution. She is a jurist who rightly leaves politics to politicians, and legislating to legislators.
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I'll quote further. Quite apart from whatever policy views she may have on the matter, judge Barrett reasons to a proper result in each case before her. As a federal appellate judge appropriately following controlling precedent, in February 2019 she joined a paneled decision upholding a law creating a buffer zone around abortion facilities. This buffer or bubble zone case being referred to as price versus city of Chicago. Judge Barrett, could you please give us an overview of the city ordinance that was challenged here, and explain how precedent established by the supreme court's held decision influenced your reasoning of the case?
>> Yes, I was on a panel, there was a challenge to a bubble zone ordinance, which essentially means it was -- how to describe it. It limited where abortion
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protesters could go to do sidewalk counseling or leafletting were the things they identified as the activities they decided to undertake in the expression of speech outside of the abortion clinic. The supreme court has a case called hill versus Colorado. And that case said that such bubble Zones, especially because this one in Chicago was nearly identical, as I recall, with the one that was at stake in hill, said that they did not violate the first amendment. And so our panel, you know, we're bound by that precedent. Our panel applied that precedent. As you say, that was a case involving abortion, but my duty as a judge was to follow the governing law and that governing law in that case was hill.
>> Absolutely and thank you for that clarification and I think it was important to point that out because in that case, using precedent, it did favor that abortion clinic. Is that correct?
>> That is correct.
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>> Thank you very much. So I would like to submit this for the record. Thank you. Now turning to a topic of agency rule making, really sexy topic, not something that we have talked about as of yet. But as I mentioned yesterday, when congress makes laws that overstep the constitution, it can be felt all across the state of Iowa, whether it's in the streets of council bluffs, Iowa or in the farm fields over in Clinton county. But congress isn't the only body capable of overstep. Executive agencies can be just as guilty of this as we've seen in Iowa. In 2018 as a judge on the seventh circuit you helped decide a clean water act case, specifically orchard hill building company versus army corps of engineers. The decision found that the
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federal government did not provide enough evidence to justify its decision to deem 13 acres of Illinois wetlands as a water of the U.S. I'm very supportive of a less expansive definition of wotus and am encouraged by how you approach this decision. Farmers in Iowa are also encouraged by this development. I believe then, as I do now, that the Obama administration's clean water rule, or the wotus rule was unconstitutional. But I also want to talk to you about agency rule making that I believe was constitutional, which is illustrated in a case that the tenth circuit court has recently ruled on, specifically renewable fuels association versus EPA. At issue in this case were three exemptions the EPA granted to oil companies allowing them to avoid their obligations to blend
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renewable fuel under the clean air act's renewable fuels standard. These oil refinery exemptions, which were not disclosed to the public, were challenged by renewable fuel producers who said they only found out about the waivers because of investigative news reports. The tenth circuit concluded in this case that the renewable fuels producers were injured by the EPA's exemptions and thus had standing to sue. The court also found that the EPA exceeded its statutory authority in granting those petitions because the agency may only extend prefacely existing waivers. In the case of these three refiners there was nothing to extend because they had let their exemptions lapse. In other words the three refineries had not received extended exemptions in the years preceding their petitions as required by the statute.
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However, in the wake of this tenth circuit decision small refineries flooded the EPA with 67 petitions for retro active waivers, some dating back as far as 2011. In an attempt to go back in time and establish a chain of continuously extended exemptions. These oil companies have also appealed to the tenth circuit decision, to the supreme court. So while I'm not going to ask you to speak on all of this and what is going on, the problem here, bottom line, is that the EPA wasn't following the law. They took the law that congress passed. They twisted it. And interpreted it for the benefit of oil producers. And that harmed our Iowa farmers. I know, again, you can't speak on how you would rule on these cases. Especially those that could be pending before the supreme
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court. But tell me, how do agencies, how should they interpret the laws that are passed by congress?
>> Well, I think that the court's rule in reviewing the lawfulness of agency action, it's largely governed by the administrative procedure act, which gorchs the way that agencies can do their business and outlines what their authority can be and there's also a doctrine called Chevron named after a case, many times we're talking about an issue of statutory interpretation, that's mostly what you're thinking of it sounds like. An agency, when a court reviews, when it's exceeded lawful authority it goes to the statute that you and congress enact and interprets that statute, looks at the text, and tries to tell whether you've given the agency, given the EPA, in your example, leeway to adopt policies and
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that leeway would be present if you had ambiguity in the statute that left the decision to the agency. But if the agency goes farther than the text of the statute permits than it is the rule of the court to say that that action, you know, was in conflict with the statute and therefore illegal.
>> And what happens, then, if there is an actual question on the intent of the law?
>> Well, a statute, in this context, in a context of a Chevron type challenge to agencies and agency's interpretation of it you would interpret the statute in the same way you would interpret any other statute. As I was talking with senator sass about earlier, my own approach to it would be textualism. And so in my approach to language, the intent of the statute is best expressed through the words. So looking at what the words would communicate to a skilled user of the language.
>> Very good. Well, I appreciate it.
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We do have a little bit of time remaining. So, again, I just want to thank you. I want to thank your family very much for lending their support to you through this process. It can be a bit grueling. But I do have to say, though, your temperament throughout the entire hearing has been truly commendable. So thank you so much. I look forward to working with you further. And with that, Mr. Chair, I will reserve my time.
>> Thank you, senator Ernst. Judge, are you okay to do two more?
>> Sure.
>> So senator booker, senator -- and then a 20-minute or so break to grab a bite to eat and finish up.
>> Mr. Chairman, your honor.
>> Hi, senator.
>> I spoke yesterday and I appreciate the attention which you gave me talking about how this is not a normal time and I want to reiterate that one more time as cogently as I can. This is something like we've never seen before in the history of the United States. We're not just days away from
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election day but people are actually voting right now. Close to a million people in my state have already voted. And about 10 million people voted nationally. The only other time a supreme court nomination hearing happened this close to an election was, as you probably know, under president Lincoln who declined to offer a nomination before the election. But we are in the midst of an ongoing election right now at a very contentious time in our democracy. It's probably not normal, also, because people are already speaking in this election, and it seems like we are rushing through this process when many of my colleagues on this committee said four years ago that we should not proceed to fill a vacancy that opened 269 days before an election and in the words of some of my colleagues including the chairman was to use our words against us we would not do exactly what we're doing right now. It's also not normal, clearly, because we're in the middle of a pandemic.
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And we have tens of thousands of new covid infections every single day. Widespread food insecurity like we haven't seen these kind of food lines in my lifetime, I don't think. People across our country are struggling. And unfortunately we see that we are rht now not dealing with this crisis. We are, instead, literally having closed the senate virtually and the only proceedings being allowed to go forward are not the issues of helping people who are struggling, but dealing with this. And it's not normal that we have a president who has repeatedly attacked the legitimacy of our institutions. So much so, and I've never seen something like this in my lifetime than former cabinet members, former chief of staff, all talk about the danger he represents to the country we all love. In fact, probably one of the most respected person on both sides of the aisle, general Mattis who served as our secretary of defense went as far to say that a man very reserved
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in his comments that Donald Trump is a danger to our democracy. We are at a time that the legitimacy of our institutions are at stake. And it's not normal that the president would further cast a shadow over your nomination as well as the Independence of the court by saying he would only nominate justices who would tear down roe V. Wade who would overturn ACA and to have a president who cannot commit himself to the peaceful transfer of power. Now, in the light of this abnormality most Americans think we should wait on your nomination. It's an illegitimate process, most Americans think we should wait. Today, and I appreciate you not following the news, but 90 of your fellow faculty members from notre dame wrote an open letter calling on you for the sake of our democracy, they didn't speak to whether you're right or left or neutral philosophy or
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nomination. It's an illegitimate process. Most Americans think that we should wait. Today and I appreciate you not following the news but 90 of your fellow faculty members from notre dame wrote an open letter calling on you, for the sake of our democracy, they didn't speak to whether you are right or left or your qualifications or philosophy, they wrote an impassioned letter for the sake of our democracy. The publicly issued a statement asking that you pull yourself, withdraw from this nomination process and have a behold until after the November election. This is not normal. The overwhelming majority of Americans want to wait but my colleagues here are not listening. And so I'm going to ask you some questions that if you had told me five years ago that would be questions asked at a supreme court nomination hearing, I would've thought they wouldn't be possible. Unfortunately I think they are necessary to ask you and I hope that you will GE me direct
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answers. The first one, you've already spoken towards issues of racism and how you deplore it. I want to ask you simply and I imagine you'll give me a short, resolute answer. You condemn white supremacy, correct?
>> Yes.
>> Thank you. I'm glad to see you said that. I wish our president would say that so resolutely. We are at a time that Americans are literally fearful because there president cannot do that in a resolute manner. I'm sorry that that question had to be asked at this time. Here's another one. Do you believe that every president should make a commitment unequivocally and resolutely for the peaceful transfer of power?
>> Well, senator, that seems to me to be pulling me in a little bit into this question of
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whether the president has said he would not peacefully leave office. To this extent that it's a political controversy, as a judge I want to stay out of it my don't want to express a view on --
>> Judge, I appreciate what you've said about respecting the founding fathers, originalism. It's remarkable that we are at a place right now that this is becoming a question and a topic. I'm asking you in light of our founding fathers, in light of our traditions, in light that everyone who serves in that office has sworn an oath where they "We are to preserve and protect and defend the constitution of the United States," I'm just asking you. Should a president