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The Lead with Jake Tapper

Trump's Supreme Court Pick Faces Senators' Questions; Supreme Court Confirmation Hearings Continue. Aired 3-3:30p ET

Aired October 13, 2020 - 15:00   ET

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

SEN. CHRIS COONS (D-DE): Let me, if I could, put up another poster that may make this a little sharper in a way, that is, the political branch is not the judicial branch.

The Supreme Court's going to hear arguments -- as I've said -- in this case a week after the election.

[15:00:02]

And most Americans are probably surprised to even hear about it. When I talked to a constituent, Carrie (ph), who has a pre-existing condition, she was surprised this was even in front of the court. She said, "I thought that was settled."

Carrie (ph) owns a small business, she has a daughter she's raising. And before the ACA, she had to spend $800 a month for insurance that she described as "junk," left her afraid of even going to the doctor's office or needing drugs. And because of the ACA, she's been able to get better quality insurance that she can afford and she's got both type 2 diabetes and high blood pressure.

But the ACA guarantees she can't be denied insurance or made to pay higher premiums either because of her gender or because of these pre- existing conditions. She expressed to me astonishment.

Many of us are engaged and interested in this because we care about the Constitution, we care about constitutional law and the ways in which it impacts a majority of all Americans -- frankly, all Americans. Help me explain to her how is it that the Affordable Care Act, settled eight years ago, is back in front of the Supreme Court?

AMY CONEY BARRETT, NOMINATED TO BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES: Well, Senator, I spent some time with Senator Sasse talking about how a case winds its way up, and it's because litigants chose to challenge the law again.

And you know, it went through the district court and the 5th Circuit, and now the Supreme Court has granted certiorari on it and is answering the question.

But as to the broader question -- which I think is a political one, which is, "Why are people fighting the Affordable Care Act?" -- you have to ask the litigants. I don't -- you know, I don't know why they're fighting the Affordable Care Act.

COONS: Well, two things on that. Yes, there are no advisory opinions, as you said in your exchange with Senator Sasse. And you have to have standing, the courts are reactive. But as Senator Whitehouse laid out, there's a whole network of groups that fund and develop and present test cases over and over and over.

And this is an issue that'll be before the court just a week after the election that is really not distinguishable from NFIB v. Sebelius. I mean, they are essentially about the constitutionality of the mandate, whether it's a legitimate exercise of the taxing power. You don't get to the question of severability if you haven't already determined the question of constitutionality.

BARRETT: But I think the question of severability, even if the now- zeroed-out mandate provision is a penalty, it doesn't affect the acts (ph) at all if that position -- if that provision can be severed out and the whole rest of the act would stand. And so I actually think that severability is sort of the -- you know, I think severability is one of the most important issues in the case.

I don't think the question of characterizing it as a tax versus a penalty, you know -- NFIB v. Sebelius also is interpreting a different provision, it was one that wasn't zeroed out that actually had money attached to it.

COONS: But if I could, this is the filing of the Department of Justice in the Supreme Court, as you well know. The Justice Department is supposed to defend the constitutionality of federal laws if any reasonable defense can be made.

And the Trump Justice Department has sided with those advocates who are trying once again to strike the law down now in the courts when they couldn't accomplish that here. In fact, I'd argue that they're denying the will of the voters that clearly in 2018, in deciding control of the House on health care, want this to stay.

And the administration's arguing that this now-toothless mandate, which imposes no payment on anyone, is unconstitutional and they're arguing the entire act must be struck down as a result. I frankly think the DOJ's embarrassed by this brief. They rarely even talk about it.

But it's in black and white and the quote's over my shoulder that the mandate is unconstitutional and must go, and so the parts of the law that prevent insurance companies from discriminating against people with pre-existing conditions that prevent discrimination against women, all of it must fall as a result.

It seems to me that Americans who are watching deserve to understand that this is somehow back up in front of the court, the posture the administration is taking, the ways in which it really does follow some of the contours of NFIB v. Sebelius and the ways in which, bluntly, while I know you won't talk about this pending case, what you said in that 2017 article, what you wrote is highly relevant.

Just as a preliminary point, the vote to uphold the ACA in NFIB v. Sebelius was five to four, correct?

BARRETT: Yes.

COONS: And Justice Ginsburg was in the majority and Justice Scalia in the minority?

BARRETT: Yes.

COONS: So if you were to replace Justice Ginsburg with someone who followed precisely Justice Scalia's analysis on the linchpin question of constitutionality, one could expect it would be overturned.

[15:05:02]

BARRETT: No, Senator Coons, because if there were a direct challenge to NFIB v. Sebelius, there would be precedent on point and (ph) the law's stare decisis is a whole doctrine that binds judges itself. So, no, I don't think one could assume that in a separate point in time, that even Justice Scalia would necessarily decide the case the same way once there was precedent on the books.

COONS: I agree, and I look forward to discussing that in some more detail tomorrow. I have just I think six minutes: Your views of precedent, Justice Scalia's views of precedent and the ways in which they may diverge, I think, are important and important for us to spend some time on.

Let me just recap this point. For President Trump, for Republican politicians, the argument about tax and about whether or not the mandate is a tax is the gateway to knocking down the entire Affordable Care Act. And that's also the line of attack being taken by the Department of Justice.

You've already said it's not plausible to interpret the mandate as a tax. You didn't think it was a tax when it was raising billions of dollars in revenue. You certainly, I think, are unlikely to believe it's a tax when it raises no revenue. And the thing that might distinguish it from NFIB v. Sebelius is reliance interests and precedent. And when I have more time tomorrow, we'll go through that.

But I just wanted to connect some dots, that Trump has repeatedly vowed to get rid of the ACA, has campaigned on it, has criticized the chief justice, has said his nominees would do the right thing. His administration is in court right now arguing in a case to be heard in just four weeks, that it should be invalidated.

And a person you've criticized -- Chief Roberts, a person whose opinion, whose decision you have criticized, Justice Roberts -- means in many ways that you've signaled, I think. You were added to the Supreme Court short list after you wrote that article. And today, my Republican colleagues, who themselves have promised to repeal the ACA, are rushing through your nomination so you can be seated in time to hear this case. It concerns me greatly that that's the circumstances we're in.

Let me ask one last line of questioning, if I might, in the five minutes I have left. There's another subject on which President Trump has been, I think, unfortunately very, very clear about what he hopes for from a Supreme Court nominee.

Just days after Justice Ginsburg passed, the President was asked why there was such a rush to fill her seat before the election and he responded, and I quote, "we need nine justices, you need that.

With the millions of ballots that they" -- and he meant the Democrats -- "are sending, it's a scam, it's a hoax. They're going to need nine justices." The next day, he told reporters -- again, he doubled down -- "I think this" -- and he means the election, from the context -- "will end up in the Supreme Court. It's very important. We must have nine justices."

Our President has also been asked whether he'll commit to a peaceful transition if he loses the election. He's been asked directly and repeatedly, and instead of responding in the way we'd expect of any leader of the free world, with a clear and simple "yes," he's tried to sow confusion and distrust in the potential results.

So Your Honor, I -- I'm concerned that what President Trump wants here couldn't be clearer, that he's trying to rush this nomination ahead so you might cast a decision, a vote in his favor in the event of a disputed election, and he's doing his level best to cast doubt on the legitimacy of an election in which literally millions of votes have already been cast, most of them by mail.

I was very encouraged, again, to hear from you specifically, you have not had any conversation with him about this topic, and that's not what I'm suggesting. In fact, you repeated promptly 28 U.S.C. 455 -- you're quite familiar with the recusal statute and its considerations -- but I think the (inaudible) in the court -- the -- the core issue in recusal is that any judge or justice should recuse themselves from a case in which their impartiality might reasonably be questioned.

Given what President Trump said, given the rushed context of this confirmation, will you commit to recusing yourself from any case arising from a dispute in the presidential election results three weeks from now?

BARRETT: Senator Coons, thank you for giving me the opportunity to clarify this, cause I want to be very clear for the record and to all members of this committee, that no matter what anyone else may think or expect, I have not committed to anyone or so much as signaled -- I've never even written -- I've been in a couple of opinions in the 7th Circuit that have been around the edges of election law.

But I haven't even written anything that I would think anybody could reasonably say oh, this is how she might resolve an election dispute.

[15:10:06]

And I would consider it -- let's see, I certainly hope that all members of the committee have more confidence in my integrity than to think that I would allow myself to be used as a pawn to decide this election for the American people. So that would be on the question of actual bias and you asked about the appearance of bias -

COONS: Correct.

BARRETT: -- and you're right that the statute does require a justice or a judge to recuse when there is an appearance of bias, and what I will commit to every member of this committee, to the rest of the Senate and to the American people is that I will consider all factors that are relevant to that question -- relevant to that question that requires recusal when there is an appearance of bias, and there is case law under this statute and as I referenced earlier, in describing the recusal process of the Supreme Court, Justice Ginsburg said that it is always done with consultation of the other justices.

And so I promise you that if I were confirmed and if an election dispute arises, you know, both of which are "if," that I would very seriously undertake that process and I would consider every relevant factor. I can't commit to you right now, for the reasons that we've talked about before, but I do assure you of my integrity and I do assure you that I would take that question very seriously.

COONS: Thank you, Your Honor. Just on the question of consultation, the Chief Justice -- former Chief Justice Rehnquist, because this question came up in 2004, wrote a letter actually to members of this committee, that there's no formal procedure for court review of a decision by a justice in individual cases. It's just something -- Justice Ginsburg did say that there was a practice of consultation.

I do think at the end of the day, what matters is removing any potential conflict here. Ensuring that there is confidence in our election, in the Supreme Court and in its role is critical.

I have reached out to a number of my colleagues to implore them to step back from the timing of this confirmation, to consider the possible confluence of three different factors here -- an election, an ACA case and a rushed timing in the middle of a pandemic -- and I would just urge them one more time to think seriously about stepping back from this timing of this confirmation.

That's not meant to impugn you or suggest that, in some way, you've engaged in some inappropriate conversation, that's just the confluence of these events at this time and this place. This election will have enormous consequences.

I am troubled by what you've written about the Affordable Care Act. I am more concerned that the President has tried over and over and over to get rid of the ACA and that the American people have consistently said no and that the consequences for a majority of Americans who rely on the ACA in the middle of a pandemic would be significant, and that the President has refused to embrace the American people's wishes and deliver some compelling alternative plan and instead has taken the battle back to the Supreme Court, where it will be heard in just a month.

I think to reach out and to strike this critical statute down now would be the worst example of judicial activism, which my colleagues say they don't want and which I hope will not happen, but I am gravely concerned by what I see.

Your Honor, I believe your views are sincere but I also think you genuinely think the Affordable Care Act is unconstitutional -- that's my reading -- and you are entitled to that view but this body and the American people, we shouldn't kid ourselves. Bluntly, if -- if our President and the majority are able to swing the court out of balance by replacing Justice Ginsburg by someone whose views may be significantly to the right, the health of a majority of Americans may well be in peril. Thank you, Your Honor.

SEN. LINDSEY GRAHAM (R-SC): Thank you, Senator Coons. Judge, if it's OK, we'll do Senator Hawley's 30 minutes and take a break.

BARRETT: Sure.

GRAHAM: Is that OK with you?

BARRETT: Yep.

GRAHAM: So Senator Hawley, you -- you're on deck. We'll try to take a 15 minute break. And just one observation -- really, a lot of good questions, good interchange. Not one time has a senator and the judge talked over each other. I hope the American people understand that this is the way that it should be. Senator Hawley?

SEN. JOSH HAWLEY (R-MO): Mr. Chairman, thank you. I'd like to begin by asking consent to enter two letters into the record supporting the Judge's nomination, the first from the Family Research Council, and the second from a group of state attorneys general, including the state attorney general of my home state of Missouri.

GRAHAM: Without objection.

HAWLEY: Thank you very much. Judge, it's good to see you again. I - I - I have been so impressed with your answers today. It - it's really quite extraordinary. I look forward to visiting with you a little bit here. Can we just start on the topic of independence, picking up where Senator Coons just was questioning you?

I - I've heard my Democrat colleagues over and over again suggest that because, I guess, you clerked for Justice Scalia that you'll automatically vote however he did.

[15:15:06]

They attribute his opinions to you, his decisions to you, his method to you.

Did Justice Scalia tell you what to do in your career? I mean, have you been in the habit in your life - of doing exactly what Justice Scalia told you to do in your professional career?

BARRETT: Well, Senator Hawley, as I said earlier, if you confirm me, you're getting Justice Barrett, not Justice Scalia. I share his method of interpreting the text, but you know, I didn't agree with him in every case, even when I was clerking. I mean, then he could tell me what to do, and even if I disagreed, I had to go his way. But the fact that we share the same approach does not mean that we would always reach the same result.

HAWLEY: And you make up your own mind, don't you?

BARRETT: I do make up my own mind.

HAWLEY: And you have your own views, I think is fair to say, is that accurate?

BARRETT: Indeed I do.

HAWLEY: And you're a very accomplished jurist in your own right, is that fair to say?

BARRETT: Well (inaudible) a little immodest to opine on that.

HAWLEY: Well I'll say it is. You're very accomplished. So I think this one way attribution that you must just be a -- whatever Justice Scalia did, you would automatically do, I have to say, frankly is a little bit demeaning. Let me ask you about some other attacks that you've endured today.

Now I noticed yesterday, we were assured that you would not be attacked on the basis of your faith, I noticed that didn't last 24 hours, but Im not surprised because for 3.5 years, we have heard consistent attacks from the Democrat side, on -- on nominees of the basis of their faith, including of course you, Justice Barrett, and we talked about this some yesterday.

Today, the second Democrat senator to speak questions, criticized you for speaking to a Christian legal group that has a program -- a summer program for Christian law students were you gave, I think it a lecture once or twice on constitutional and statutory interpretation.

So let me just ask you about that. You've talked about your faith, this has been well established. You accepted an invitation to speak to a group of Christian law students on the topic of -- of your specialty. Tell us why you accepted the invitation?

BARRETT: I had several other colleagues who had participated in the Blackstone (ph) program lecturing, and I hear great things about it from them. We had a contingent of students from Notre Dame regularly attend this program, and they were among our most engaged and smartest students. And I went and did it. The first time I did it, I really enjoyed it, the students were very, very engaged.

So I did it -- I don't know, I might have done it four or five times. Each summer I would go and just give a lecture on (ph) originalism that was one hour of the -- Blackstone (ph) is a summer long program, so I went and gave my one hour lecture at the beginning of it, and I really thought it was -- it was a fun talk about the Constitution to an engaged group of students. It was fun for some who's a law professor. HAWLEY: Are you aware of anything in the Constitution or our laws that say that it is a disqualification for office for a believer religious faith, to -- to go on lecture to law students of the similar faith in her area of expertise?

BARRETT: I certainly -- I want to be careful that I'm not veering into answering hypothetical questions, but I certainly didn't think there was anything wrong with my going to speak to a group of Christian law students about my expertise.

HAWLEY: Let me ask you this. Senator Leahy also raised a pledge, a statement that you signed regarding abortion. You told us -- you told the committee in response to this question, you and your husband both signed it, I'm looking at the advertisement in question right here, the portion that you signed. You said that you signed it on your way out of church, if I remember correctly.

BARRETT: I did. That was almost 15 years ago. On at the back of church, there was a table set up for people on their way out of mass, to sign a statement validating their commitment to the position of the catholic church on life issues.

The ad that was next to it, I don't recall seeing the ad at the time, and upon just looking at it, looks to me like that was an ad by the St. Joseph County Right to Life group. The statement that I signed, it was affirming the protection of life from conception to natural death.

HAWLEY: And you just made reference to the fact again, that was it was in church. Can you just -- why would have been in -- in the back of church? Why would -- would signatures -- why would this have been available to sign or not, as you so chosen, in the back of church?

BARRETT: Well, because that is the position of the catholic church you know, on abortion. So I feel like I should emphasize here as I emphasized to others asking me the questions, that I do see as succinct, my personal moral, religious views and my past of applying the law as a judge.

HAWLEY: Is it safe to say following that distinction you just made, of the signature that you, Lance, your husband also reflects your understanding of your church's teaching and -- and your own personal views?

[15:20:04]

I mean, that's what this says, that you signed.

BARRETT: So what I would like to say about that is, I signed that almost 15 years ago in my personal capacity when I was still a private citizen.

And now I'm a public official, and 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 cannons of conduct, to express an affirmative at this point in time. But what that statement plainly says is that when I signed that statement, that is what I was doing at that point as a private citizen.

HAWLEY: And I'm not aware of any law or provision of 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 teachings, that you're therefore barred from office. Are you aware of any constitutional provision to that effect?

BARRETT: I would think that the religious test laws would make it unconstitutional--

HAWLEY: Well let me just ask you about the test clause, since you bring it up. Article 6 says no religious test shall ever be required as a 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 significance of -- of article 6 for our constitutional scheme?

BARRETT: So the religious test clause prohibits this body, it prohibits the government generally from disqualifying people from office because of their religious beliefs.

HAWLEY: And it guarantees, does is not that the freedom of religion -- I mean, it is a -- article 1 -- I'm sorry -- amendment one -- the first amendment, will go on to talk explicitly -- and I want to ask about that in a second, about religious liberty. But article 6 is significant in that it sets out the 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 -- certainly not somebody in government -- their approval over what you believe, does not meet this test or not, do they like it or not. You don't have to get any sign off. In fact, any kind of sign offs are explicitly ruled out by the Constitution. Is that a fair characterization?

BARRETT: The religious test clause makes plain that nomination or beliefs can't be a reason to disqualify someone.

HAWLEY: And that is why I continue to say it is -- it is vital that we underline in the Constitution, that this -- this test clause and that we insist that it be applied in the context of your confirmation, judge, and every nominee for every high office who comes before this committee.

There are no religious tests for office, and the attempt to smuggle them in even in the midst of this committee's hearing to date, it has -- it must be resisted on the basis of the Constitution itself. Let me ask you about the First Amendment, about the free exercise of religion.

That's of course how the First Amendment begins, Congress shall make no law respecting an establishment of religion, 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 -- why is it protected like this in the first amendment? What do you draw from that? BARRETT: I mean, I think its presence in the Bill of Rights, like all of our rights, shows that it was one that the people, for generations, beginning in 1791, considered central to a being a free people.

HAWLEY: And there's no indication from the Constitution that religious believers are a second class citizens in any way, is there?

BARRETT: Well, the free exercise certainly suggests to the contrary.

HAWLEY: And in fact, the free exercise clause and First Amendment suggest that the exercise of religion, worship, religious belief gets special protection. I mean, it's singled out here for protection along with and immediately after speech, the press, right of the people peacefully to assemble. Religion is given a special place, which the United States Supreme Court has recognized.

Let me just ask you about attempts to disfavor religious believers on the basis of faith. Is it your understanding, can a government -- at any level, federal government, state government, municipality, whatever -- can they treat religious believers differently? Can they single them out for disfavor versus a nonreligious group? Is that permissible in our constitutional order?

BARRETT: Well, Senator Hawley, that's a complicated question because you know there's a lot of doctrine surrounding that. And there aren't bright-line rules, and so that question would come up in a case with facts and you know, it would require the whole judicial decision- making process, so it's not a hypothetical that I can answer.

HAWLEY: Let me ask you about the court's decision --

JAKE TAPPER, CNN HOST: All right, you have been watching Judge Amy Coney Barrett before the Senate Judiciary Committee under oath taking questions from Democrats and Republican, senators, on Capitol Hill today, as part of the her confirmation hearings to be the newest Supreme Court justice.

[15:25:05]

Judge Barrett would not answer if she would recuse from the pending Affordable Care Act case, which goes before the High Court one week after the election. That would be November 10. She would not answer if she would recuse herself in any decisions about the election, Judge Barrett also giving no indication in how she might rule on future abortion cases.

She did say multiple times she has had no conversations with the White House about any future rulings.

All of this, of course, is in keeping with the Kabuki of Supreme Court hearings, Supreme Court confirmation hearings, where nominees act as though they don't have opinions on these issues and refuse to answer as to what they think about things that they obviously have been thinking about for decades.

CNN's Manu Raju is live for us on Capitol Hill. Manu, have there been any major surprises so far?

MANU RAJU, CNN SENIOR CONGRESSIONAL CORRESPONDENT: They really have not. She has not been pinned down on virtually any of these major issues.

A couple of things that she did say, though, undoubtedly Democrats will point to, however. One of these is Roe vs. Wade. While she would not describe her views of whether or not the abortion rights should be overturned in any way, despite having a position promoting -- raising concerns about Roe vs. Wade before she became a federal judge, right now, she wouldn't say how she views that.

But she did say she does not believe that that landmark ruling is so- called super precedent, which, of course, means something that cannot be touched. She said that there are challenges to that ruling. And so she would not want to weigh in one way or the other about what and how it needs to be changed in any way, because the contours of that landmark ruling will be -- are being discussed and being challenged moving through the court system.

So that clearly is something that Democrats will point to. She did say that she would very seriously consider recusing herself from any election-related disputes after the election, if anything goes to the Supreme Court and she's a sitting justice, but she would not commit to recusing herself from that as well, despite the president himself saying he needs to have nine justices on the Supreme Court to essentially resolve the election.

She said that she would not be used as a pawn by anybody to determine the outcome of the election. But she also would not commit to recusal.

And there are just a number of things, Jake, that she would not specify her views, including whether or not she believes that poll watchers can intimidate voters at the polls, whether federal law prohibits people from being intimidated as they go to the polls and cast their votes.

Amy Klobuchar tried to ask her if she believes that. She said, "I can't characterize the facts on a hypothetical situation" Klobuchar was referring to.

Of course, the president has repeatedly called on his supporters to go and monitor the polls very closely. And you mentioned it, a range of issues too. Same-sex marriage, she would not express her point of view on the ruling that legalized same-sex marriage.

And on the Affordable Care Act, that 2012 case that upheld the law, her criticism of John Roberts's ruling in that, she said the case that's coming before the court after the election, she said it turns on a different issue, said she will not weigh in one way or the other how she may come down on that.

TAPPER: That's right.

Senator Coons, a Democratic senator from Delaware, trying to make the issue -- trying to make the case that she has hostility to the Affordable Care Act. She insists that she does not. And her book review in which she mentioned Justice Roberts' view and ruling on that issue, she said, was not specifically germane to the upcoming case.

Let's discuss all of this with our panel.

Jeffrey, what's your reaction? You have said that you didn't think we'd get many answers from Judge Barrett about how she views certain issues. I mean, this is -- to be fair to Judge Barrett, this is not unusual.

Supreme Court confirmation hearings are exercises in deftly avoiding answering the questions. But did you get any sense of how a Justice Barrett might rule on the court?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Well, I think you have to look at her history.

And I thought Senator Coons really got to the point quite well, because several times through the course of this hearing, she has been presented with the fact that she has spoken out against abortion and been part of groups that were against abortion rights.

And she wrote this law review article, which you just mentioned, that criticized Chief Justice Roberts' opinion upholding the Affordable Care Act. And each time she has been confronted with that, she said, well, that was just me as a private person. It's not -- it's not a legal opinion that I offered. My legal views are different from my personal views.

And what -- the point I thought Chris Coons made that was a good one was, but these opinions are why you were appointed. It's because the people around the president who want conservatives on the Supreme Court, they read that article in the law review. They saw that you signed petitions against Roe v. Wade.