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Breaking News: Trump's Supreme Court Pick Faces Senators' Questions. Aired 1:30-2p ET.

Aired October 13, 2020 - 13:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

SEN. TED CRUZ (R-TX): The argument of the four dissenters was not what our Democratic colleagues talked about here. It wasn't some reasonable gun control provisions are okay, that was not the argument of the dissenters.

[13:30:02]

That question we actually had a reasonable debate on, reasonable minds can differ on what the appropriate line should be, what are reasonable law there? But that was not what was at issue with Heller.

The position of the four dissenters was the Second Amendment protects no individual rights to keep and bear arms whatsoever. But merely a quote "collective right of the militia", 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 right under the First Amendment would mean you and I and every American watching this would lose your Second Amendment right.

It would mean the federal government, the state government, the city could ban guns entirely, could make it a criminal offense for any one of us to own a firearm and no individual American would have any judicially cognizable right to challenge this.

That is a radical reading of the Constitution. That is effectively erasing the Second Amendment from the Bill of Rights. And Hillary Clinton likewise promised in 2016 that every justice she nominated would commit to voting to overturn Heller. They were big on litmus tests.

And Joe Biden, although he refuses to answer just about anything about whether or not he's going to pack the court, he did tell the American people that voters don't deserve to know whether he's 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, none of our Democratic colleagues admit that that is their agenda. And yet, those are the justices that Democratic presidential nominees

are promising they will appoint -- justices who will take away your right to criticize politicians, justices who allow censorship, justices who will allow movies and books to be banned, justices who will 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, according your conscience -- whatever that faith may be.

Religious liberty is fundamentally about diversity. It's about respecting diversity. That whatever your faith tradition might be, the government is not going is not going to trample on it.

Religious liberty cases over and over again have been decided 5-4. The case of Van Orden v. Perry -- a case I litigated -- dealt with the Ten Commandments monument that stands on the state capitol grounds. It's been there since 1961 in Texas.

An individual plaintiff -- an atheist, a homeless man -- filed a lawsuit seeking to tear down the Ten Commandments. The case went all the U.S. Supreme Court. It was decided 5-to-4. Four justices were willing to say, in effect, send in the bulldozers and tear down that monument because you can't gaze on the image of the Ten Commandments on public lands.

Another case, the Mojave Desert Veterans Memorial -- this was a memorial erected to the men and women who gave their lives in World War I. It's a lone white Latin cross, simple and bare in the middle of the desert -- I've been there -- on Sunrise Rock, where it stands.

The ACLU filed a lawsuit saying you cannot gaze on the image of a cross on public land. And the ACLU won in the district court. They won in the 9th Circuit Court of Appeals. The federal courts ordered the veterans memorial to be covered up with a burlap sack with a chain on the bottom and in a plywood box.

When the case went to the U.S. Supreme Court, I represented 3 million veterans pro bono, for 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, at Arlington Cemetery, defending this nation.

[13:35:00]

That is a radical view. And we're one vote away. That is utterly contrary to the text of the First Amendment, to the understanding of the First Amendment.

When we argued the Ten Commandments case in the U.S. Supreme Court there was more than a little bit of irony in that. Do you how many times the 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 you walk out of the courtroom -- you will soon be sitting looking at them. There are 40 images of the Ten Commandments on the bronze gates on the -- both sides of the courtroom.

And then, Judge Barrett, when you're sitting at the bench, above your left shoulder will be a frieze you know well. A frieze carved into the wall of 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 upon the justices.

And four justices will -- were willing to say, in effect, bring out the sandblasters because we must remove God from the public square.

That is a profound threat to our religious liberty. And I would note that it doesn't just extend to public acknowledgements. It also extends to religious liberty. The Little Sisters of the Poor are a Catholic convent of nuns who take oaths of poverty, who devote their lives for caring for the sick, caring for the needy, caring for the elderly.

And the Obama administration litigated against the Little Sisters of the Poor, seeking to fine 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 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 force a Christian business to violate their faith. It reflected the religious liberty traditions of our country 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 legislation to gut the Religious Freedom Restoration Act. Religious Freedom Restoration Act, when it passed this body, passed with an overwhelming bipartisan majority.

Senate Democrats -- including Chuck Schumer, and Joe Biden and Ted Kennedy -- all voted for the Religious Freedom Restoration Act. Democratic President Bill Clinton signed the Religious Freedom Restoration Act.

And yet, in the wake of the Hobby Lobby decision, this body voted on legislation to just gut the protections for religious liberty. And I'm sorry to say, every single Senate Democrat voted to do so. Not a single one, zero, would defend religious liberty.

Joe Biden has already pledged, if he is elected, he plans to initiate again the attack on the Little Sisters of the Poor.

You know, it's 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 our Democratic colleagues like and agree with, the press is happy to amplify those views.

Somehow missing from that amplification is acknowledgement 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 he did so because he wanted to highlight their cause, that the federal government shouldn't be persecuting nuns for living according to their faith.

That's what is at stake in these nominations. And you won't hear any of that from the Senate Democrats on this committee. That is why their base is so angry at your nomination Judge Barrett, because they do not believe you are going to join the radical efforts to erase those fundamental rights from the Bill of Rights.

I believe that if you're preserving the Constitution, preserving the Bill of Rights, our fundamental liberties, I believe it's the most important issue facing the country in the November elections.

[13:40:07]

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's wildly unpopular and look, right at the heart of this is a decision many Democrats have made to abandon democracy.

You see most policies, policies like Obamacare, policies like healthcare, most policies on our constitutional system are meant be decided by democratically elected legislatures. Why?

So they can be accountable to people. So if the voters disagree, they can throw the bums out. But too many Democrats have decided today that democracy is too complicated. It's too hard to actually convince your fellow Americans of the merits of your position.

It's much easier just to give it to the courts, find five lawyers in black robes and let them decree the policy outcome you want, which makes your radical base happy, presumably makes the millions, if not billions in dark money being spent for Democrats, happy, without actually having to justify it to the American people.

Judge Barrett, I'm not going to ask you to respond to that (ph),but I do want to shift to different topic, which is a bit more about you personally, your background. Judge Barrett, do you speak any foreign languages?

AMY CONEY BARRETT, NOMINATED TO BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES: Once upon a time and I could speak French, but I have fallen woefully out of practice, so please don't ask me to do that right now.

CRUZ: You can be assured of that, because my -- I had two years of high school French, and -- and -- and I suspect yours remains much better than mine. How about music? Do you play any instruments?

BARRETT: The piano. CRUZ: How long have you played the piano?

BARRETT: Well I've played the piano growing up for 10 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.

CRUZ: Now, do the kids do piano lessons as well?

BARRETT: 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've stopped, but the younger children do.

CRUZ: Our girls are nine and 12 and we have -- they both do piano lessons, and I will say at least in our household it is less than voluntary.

(LAUGHTER)

CRUZ: One of the things Heidi and I found particularly the last six months during COVID, 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've -- you've got seven kids. How -- how did -- how did you all manage through the lockdowns and distance learning? What was that like in -- in -- in the Barrett household?

BARRETT: Well it was a challenging time as it was for every American. Our oldest daughter, Emma who's in college, moved home at that point, because she's at Notre Dame it's closed.

So Emma obviously can manage her own e-learning, and our high school aged children, Tess and Vivian (ph) could too. But Jesse and I just tried to take a divide and conquer approach for the younger four. And yes, it was quite challenging, I assure you.

CRUZ: One part of your story that I find typically remarkable and that I admire, is the decision you made to adopt two children. You and your husband had five biological children, 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 -- and actually Heidi and the girls just got back from Haiti couple 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 decision to adopt? It's -- it's, I think one of the most loving and -- and compassionate decisions any family can make.

BARRETT: When Jesse and I were engaged, we met another couple who had adopted, in this instance, it was a couple that had adopted a child with special needs, and then we also met another couple that adopted a few children internationally.

[13:45:04] And we decided at that point when while we were engaged, that at some point in the future, we wanted to do that ourselves. And I guess we had imagined initially that we would have whatever biological kids that we had decided to have, and then adopt at the end.

But after we had our first daughter, Emma, we thought, well why wait. So I was expecting Tess when we went and got Vivian. So she and Tess function -- we call them out paternal twins.

They're in the same grade, and it really has enriched our family immeasurably. And once we had adopted Vivian, at that point, then we made the decision that we definitely wanted to adopt again. And so several years later John Peter entered our family.

CRUZ: So your children have been wonderfully well behaved. I think you're an amazing role model for little girls. What advice would you give little girls?

BARRETT: Well what I am saying is not designed -- my brother now has laughed -- I'm just thinking of what my dad told me before the spelling bee about anything boys can do, girls can do better. And since my sons are sitting behind me, I'll also say, but boys are great too.

CRUZ: Thank you.

SEN. LINDSEY GRAHAM (R-SC): Thank you. Senator Klobuchar.

SEN. AMY KLOBUCHAR (D-MN): 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 we need a recess here in my mind for the people at home, a bit of a reality check that this isn't normal right now. We have to understand what people are dealing with, that 7.7 million people have gotten this virus that 214,000 Americans have died.

And for people watching at home and wondering what we're all doing in this room right now, and maybe you're home because you lost your job or maybe you've got your kids crawling all over your couch right now, maybe you're trying to teach your first grader how to do a mute button to go to school. Or maybe you've got a small business that you had to close down or that's struggling.

We should be doing something else right now. We shouldn't be doing this. We should be passing coronavirus relief, like the House just did, which was a significant bill that would have been a big help, and I think people have to know that right now. And whether you're Democrat, Independent or Republican, and that's why I 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 one of my friends called it -- related that you'd be dealing with the dormant commerce clause.

Well, 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 appreciated, Judge, that you said that you didn't want to be a queen. I actually wouldn't mind being a queen around here, the truth be known.

(LAUGHTER)

KLOBUCHAR: I don't -- I wouldn't mind doing it as kind of a benevolent queen and making decisions so we could get things done.

But you said you wouldn't let your views influence you and the like. But the truth is, the Supreme Court rulings, they rule people's lives. They decide if people can get married. They decide what schools they can go to. They decide if they could even have access to contraception. All of these things matter, so I want to make that clear.

And the third reset here 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 Senator McConnell. The last time we had a situation in an election year he said the American people should have a voice in the selection of their next Supreme Court justice.

Therefore, this vacancy 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, and that is that in an election year, the people choose the president, and then the president nominates the justice.

[13:50:13]

So why is this happening? Well, that's a good question. This guy, our president, he is the one that decided to plop a Supreme Court nomination in the middle of an election when people's healthcare is on the line with a 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 his judicial appointments will do the right thing on Obamacare. You can see it right here. And in fact, Judge, just one day after you were nominated -- this is, like, a few weeks ago -- he said also on Twitter that it would be a big win if the Supreme Court strikes down the health law.

So Judge, my first question: Do you think we should take the president at his word when he said his nominee will do the right thing and overturn the Affordable Care Act? BARRETT: Senator Klobuchar, I can't really speak to what the president has said on Twitter. He hasn't 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 from me any commitment in a case, or even brought up a commitment in a case.

I am 100 percent committed to judicial independence from political pressure, so whatever people's, you know, party platforms may be, or 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 you know, I -- I have not pre-committed, nor would I pre-commit to decide a case any particular way.

KLOBUCHAR: OK, and I think this life tenure, this 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 be. And I know you have not said how you would rule on this case that's 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 in 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, quote, "pushed the Affordable Care Act beyond its plausible meaning to save the statute". Is that correct?

BARRETT: Senator Klobuchar, I just want to clarify. Is this the constitutional commentary publication that you and I discussed? Because I (inaudible) -- OK.

KLOBUCHAR: Yes, it is. In fact, it is, but it's still a Minnesota -- University of Minnesota Law -- yes.

BARRETT: No -- OK, I just wanted to be sure...

KLOBUCHAR: Yeah.

BARRETT: I hadn't published it in the (inaudible).

KLOBUCHAR: Again, did you ask that question -- did you say that, that he pushed the Affordable Care Act beyond its plausible meaning to save the statute?

BARRETT: One thing I'm going to clarify is you said that I criticized, you know, Chief Justice Roberts, and I don't attack people, just ideas, so...

KLOBUCHAR: OK.

BARRETT: That was just designed to -- to make a comment about his reasoning in that case which I've -- as I said before, is consistent with the way the majority opinion characterized it as the less- plausible reading of the statute.

KLOBUCHAR: OK, so you didn't agree with his reasoning in the case that upheld the Affordable Care Act.

BARRETT: What I said, and was this King v. Burwell or NFIB v. Sebelius?

KLOBUCHAR: That was NFIB v. Sebelius.

BARRETT: Sebelius.

KLOBUCHAR: I'll get to King v. Burwell in a second.

BARRETT: OK. What I said with respect to NFIB v. Sebelius is that the interpretation that the majority exacted constrained the mandate to be a tax, rather than a penalty, was not the most natural reading of the statute. (inaudible)...

KLOBUCHAR: But it was still the reading that Justice Roberts got to. Now, you also criticized, as you pointed out by bringing up King v. Burwell, another case where the court ruled in favor of the health law.

This was in a 2015 National Public Radio interview, and you acknowledged that the results of people being able to keep the -- their subsidies under the Affordable Care Act was -- and it would help millions of Americans. Yet you praised the dissent by Justice Scalia, saying the dissent had, quote, "the better of the legal argument". Is that correct?

BARRETT: I did say that, yes.

KLOBUCHAR: OK, so then would you rule -- have ruled the same way and voted with Justice Scalia?

BARRETT: Well, Senator Klobuchar, one of the plus sides, or the upsides of being an academic is that you can speak for yourself.

[13:55:04]

A professor professes and can opine. But it's very different than the judicial decision-making process. So it's difficult for me to say how I would have decided that case if I had to go through the whole process of judicial decision-making that I was describing this morning.

Now, having been a judge for three years, I can say I appreciate greatly the distinctions between academic writing or academic speaking and judicial decision making, such that a judge might look at an academic and say "easy for you to say," because you're not on a multi- member court, you're not constrained by stare decisis, you don't have real parties in front of you consulting with litigants, consulting with your clerk. It's just a different process.

KLOBUCHAR: I'm just -- I view -- that's one -- so interestingly (ph) because you were commenting on the public policy result, which you and my colleagues on the Republican side have said "this shouldn't be about public policy" and you said "OK, that's OK," but then you were really clear on your legal outcome in terms of your view, of whose side you were on.

You were on Scalia's side and, of course, that was a side to not uphold the Affordable Care Act, which would've been -- kicked millions of people off their healthcare. In effect, they would've lost their subsidies.

And I just see this as interesting because of this kind of dichotomy they're trying to make between policy and legal, and my view is that legal decisions affect policy. I mean, I'm looking at people in my state that'll deal with this if the Affordable Care Act is struck down -- Elijah (ph) from St. Paul, who was born with cerebral palsy. Because of the Affordable Care Act, he is now 16 and is a proud Boy Scout.

Casey (ph), whose brother lives in Alexandria and he has chronic kidney failure and he needs a transplant. Without the ACA, that'd be that. Or Bernette (ph) from the suburbs of St. Paul, whose daughter has multiple sclerosis, depends on benefits under the ACA.

Liliana Fridley (ph), who has a 21 year old son with autism, and needs her children to be able to stay on her insurance until she's 26. Melanie (ph), a senior from Duluth who's being treated for ovarian cancer and needs access to the Affordable Care Act.

So my point is that these are real world situations. And so I get that you're not saying how you'd rule on these cases. So what does that leave us with here, to try to figure out what kind of judge you would be?

And I was thinking last night of when I was growing up, we would go up to northern Minnesota, and we didn't 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'd have us figure out what they were -- or elk or maybe even a bear, and we would follow these tracks down that path and you'd always think "is there going to be a deer around the corner that we're going to see?" And very rarely was there one but we would follow the tracks.

And so when I look at your record, I just keep following the tracks. That's what I've got to do. And so when I follow the tracks, this is what I see -- you consider Justice Scalia, one of the most conservative judges in the history of the Supreme Court, as your mentor.

You criticized the decision written by Justice Roberts upholding the Affordable Care Act. That is, to me, one big track. Even if you didn't consider yourself criticizing him personally, you criticized the reasoning.

You then said in another case about the Affordable Care Act that you would -- that you like the legal reasoning, that he had the better legal argument -- that Justice Scalia had the better legal argument.

You have signed your name to a public statement featured in an ad -- a paid ad that called for an end to what it called -- the ad 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 that felons shouldn't be able to get guns, something that was pretty important to me when I had my old job in law enforcement. This is something that Senator Durbin asked you about.

You suggested that you agree with the dissent in the marriage equality case, Obergefell, that it wasn't the role of the court to decide that same sex couples had the right to be married. I think this was in a lecture you gave, where you said the dissent's view was that it wasn't for the court to decide. They could -- people could lobby in state legislatures.