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Confirmation Hearing for Trump's Supreme Court Pick. Aired 8:50-9:30a ET

Aired October 12, 2020 - 08:50   ET

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

[08:50:11]

POPPY HARLOW, CNN ANCHOR: Good Monday morning, everyone. I'm Poppy Harlow. Glad you're with me.

A high-stakes hearing just weeks before Election Day. Moments from now, the Senate will kick off the confirmation process for President Trump's Supreme Court pick, that is Judge Amy Coney Barrett. Republicans are pushing ahead with lightning speed to try to fill this seat. Of course, it is the seat left vacant by the late Justice Ruth Bader Ginsburg. You should gear up for quite a few days on Capitol Hill as this confirmation will reshape the high court for decades to come.

We have team coverage this morning.

Let's begin with our Manu Raju. He joins us on Capitol Hill.

Good morning to all our experts. Glad to have you here. It's a big day.

Manu, walk us through how today's going to go.

MANU RAJU, CNN SENIOR CONGRESSIONAL CORRESPONDENT: Well, it's going to begin the opening arguments on both sides. The senators are going to be speaking, rotating from Democrat -- Republican to Democrat up until when the witness herself, Amy Coney Barrett, speaks, gives her opening statement.

Questionings won't begin until tomorrow. There will be two days of questions. That's when we'll see a lot of these feisty exchanges between Democratic senators and Amy Coney Barrett Tuesday and Wednesday. And then the key moment on Thursday, when Republicans will begin the process of considering her for a vote in the committee. At that point, Republicans need to have a quorum of members, essentially all their members here in order to move forward. And already two members have, in the recent days, tested positive for the coronavirus, that's Mike Lee and Thom Tillis. They sit on the committee.

Now, just this morning, Mike Lee of Utah said that he would attend these hearings in-person. He says he has been cleared by his doctor to attend. Thom Tillis, who's in a difficult re-election race himself, has indicates that he will return so Republicans are feeling pretty good about moving this nomination forward. Now, one of the things that we will hear in the -- today and in the

days ahead is how fast this is moving. Typically it takes about two to three months for a confirmation process to complete itself. This will happen in probably just over a month's time. Republicans are trying to get her on the bench just days before the election. October 29th is the date for the ultimate confirmation vote. And, of course, this came after the Republicans held open the Senate seat for Barack Obama's pick in 2016 because they contended back in March of that year that it was too close to the election.

So this is going to be an argument that we'll -- that we'll hear today. Republicans will say there's nothing unusual to confirming a nominee to the court in an election year. They'll point to precedent they'll argue on their side.

Also we heard a lot about the substance today, one of which, of course, is the Affordable Care Act a week after the election. The Constitutional -- that case will be before the Supreme Court to determine whether to uphold that law. She has criticized the law, that ruling to uphold the Affordable Care Act in the past. That will be something Republicans -- Democrats will push over and over again today.

HARLOW: Yes.

RAJU: That's going to be their theme and the Republicans, of course, Poppy, will say, this is a well-qualified nominee who deserves to be confirmed.

HARLOW: Yes.

RAJU: So this -- this fight will play out today and the days ahead.

Poppy.

HARLOW: Yes. I mean that's huge because that fight over the ACA comes on November 10th and as she wrote just a few years ago, Manu, she thinks the chief justice there overstepped the bounds on that one. We'll get into that in a moment. Appreciate the reporting.

We're standing by for this hearing. With us, Abby Phillip, Joan Biskupic, Jeffrey Toobin.

She's -- I mean, look, this is someone who was a law professor for most of her career, Jeffrey. She has a relatively short term on the bench so far. She's been there a few years, since October 2017. There's not a ton of major opinions so that people can tell exactly what her jurisprudence is. There's a few, and we'll talk about them. But she was in so many ways molded by the justice she clerked for, and that was the late Antonin Scalia.

Listen to this.

(BEGIN VIDEO CLIP)

JUDGE AMY CONEY BARRETT, SUPREME COURT NOMINEE (September 26,2020): I clerked for Justice Scalia more than 20 years ago, but the lessons I learned still resonate. His judicial philosophy is mine too. A judge must apply the law as written. Judges are not policymakers, and they must be resolute in setting aside any policy views they might hold.

(END VIDEO CLIP)

HARLOW: She is an originalist. Tell us what it means and how molded she was by Justice Scalia in terms of what we can expect ahead if confirmed.

TOOBIN: Well, let's just talk about that line about policy views. You know, let me translate that into English. What that means is that if a state wants to ban abortion, that should be up to the state. That's a policy that the court should not address. In other words, Roe v. Wade should be overturned.

If a state wants to ban gay people from getting married to each other, that's a policy issue that that -- that the state should be allowed to do and the court should have nothing to do with it. This is what it means to defer to the policymakers in the states as opposed to in the judicial branch of government.

[08:55:03]

HARLOW: Thank you for translating it into English for us. It is very important for people to know the practical implications of what it would mean.

Joan, there are a number of things in her opening statement that we'll hear live this afternoon when they get to her that are interesting. This struck me. She writes, quote, "I've been nominated to fill Justice Ginsburg's seat, but no one will take her place. I will be forever grateful to the path that she marked and the life that she led.

She is all of those things, however she's very different from Justice Ginsburg. We're watching her -- images of her family walking in. And I'd be remiss not to note how remarkable it is. I mean she and her husband are parents of seven children, two of them adopted from Haiti, which, Joan, she also writes about, how being a parent of school-age children will make her different than the other justices on the bench.

JOAN BISKUPIC, CNN SUPREME COURT ANALYST: That's right, Poppy. I think that's a theme we're going to hear throughout the day and throughout the week is that she has a pretty amazing family.

During her 2017 hearings, even her critics opened by saying, look at what you've done, we're very impressed with your family. And there's no getting around that, especially, you know, the seven kids, two from Haiti, one with downs syndrome, which she talks about in her opening statement, and will probably talk about at other points. But that's -- that's wonderful, but what the senators will also try to get at in their way is, you know, what will she do on the court? What will she do on the court?

And I do have to say, Poppy, covering these hearings for some 30 years now, this is an unusual one in that not only are we not expecting to get direct answers, we might not even get direct questions because much of her record involves her own writings on religion and faith, which is a topic that's a very touchy and I don't anticipate that the Democrats are going to want to embrace that. She -- they'll focus, of course, as Manu said, on the Affordable Care Act and the risk for that landmark legislation with her presence on the court. What she'll do in the election.

So I think what they're going to do, her critics, will focus more on Trump initiatives than hers because, you know, as you just saw there, and as we've witnessed since she went on the federal court in 2017, she is very disciplined, very poised. She will not be defensive during the questioning. I found that she was able to deflect the senators' queries, even in a time when they were -- they were trying to hit her head-on, a practice that I do not believe is going to carry over that much this time around.

So you hit the right notes about her family.

HARLOW: Yes.

BISKUPIC: I think the Republicans will highlight that throughout also.

HARLOW: Right. But this is -- she has very -- a very different record and a very different view on the Constitution than Justice Ginsburg, which is the seat that she would be filling, Joan, and, you're right, it is key for people to understand the differences.

BISKUPIC: Oh, Poppy, I cannot overstate that. This -- her addition to the Supreme Court will turn it from a 5-4 conservative bench to a 6-3. And that is not just a matter of one mere vote. That means that now the liberals, such as they are, with just three on the bench, would have to win over two votes, not just Chief Justice John Roberts, as they have been able to do in recent terms. So this is -- this will be a much different court, a court that we haven't seen for decades.

HARLOW: Yes.

Abby, two years ago, 2017, three years ago it was Senator Dianne Feinstein, who's still the ranking member, who said dogma lives loudly in you, right, and received so much backlash because of the way that she phrased that, the view that many conservatives took that she was trying to say that the judge would not be able to separate her own personal religious beliefs from her rulings.

How do Democrats dance this dance now? I mean has Feinstein essentially boxed them in that they can't pursue that line of questioning?

ABBY PHILLIP, CNN POLITICAL CORRESPONDENT: I think in many ways she has boxed Democrats in, that it's created this sort of boogeyman that Republicans are so eager to talk about, so much so that you're already hearing them say that if any Democrat brings up even the issue of abortion or the issue of Roe v. Wade, that will be seen as a tacit attack on Amy Coney Barrett's religion. So this is really looming large over this hearing. And I wouldn't be surprised if we didn't really hear much at all from Democrats about this issue today.

HARLOW: About it, yes.

PHILLIP: And maybe even for the next several days.

HARLOW: That's really interesting.

I mean, I would just note, also, three Democratic senators, two of whom are still there, Joe Manchin and Tim Kaine, voted for her appointment, by the way, to the Seventh Circuit just a few years ago.

PHILLIP: Yes.

[09:00:04]

HARLOW: Jeffery Toobin, I was really struck by this part of her opening statement. She talks about

[09:00:00]

POPPY HARLOW, CNN ANCHOR: -- for her appointment, by the way, to the Seventh Circuit just a few years ago.

Jeffrey Toobin, I was really struck by this part of her opening statement. She talks about being new perspectives to the bench and she then goes on to say I'd be the first mother of school age children to serve on the high court. I'd be the first justice to join the court from the Seventh Circuit in 45 years, and I would be the only justice who did not attend Harvard or Yale, Jeffrey. And I say that with a smile, but I do think it really matters just in terms of a difference of thought and approach.

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Well, I think it's completely ridiculous that all the justices had gone to Harvard and Yale, and I certainly think that --

HARLOW: Oh, I thought you were going to say my question was ridiculous.

(LAUGHTER)

TOOBIN: No, no, I mean, you know, there are lots of good law schools in the country and there's no reason for all --

HARLOW: Yes.

TOOBIN: Only two to be represented on the Supreme Court.

HARLOW: Right.

TOOBIN: And you know, I mean, I guess because I'm a father, too, I mean, the idea that a mother of school age children is so different from a father of school age children. You know, there have been lots of -- John Roberts was a father of school age children when he became --

HARLOW: Good point.

TOOBIN: When he became chief justice of the United States. I mean, so -- I mean, yes, it is an interesting distinction, and it is, you know, it is worth pointing out that, you know, the fact that she's a good mother, the fact that she has an admirable family, the fact that she, you know, has had an exemplary life --

HARLOW: Yes.

TOOBIN: -- are ways of distracting from the fact that the conservative agenda --

HARLOW: Yes.

TOOBIN: -- on the Supreme Court is not popular with the American people. That the American people don't want to see "Roe v. Wade" overturned. They don't want to see same-sex marriage banned again. I mean, so, you know, it is no coincidence that Republicans want to talk about those issues because the actual work of the Supreme Court is something that was actually what this hearing is about and their position is not that popular.

HARLOW: Yes. Two very good points. Two things, Joan, to you. It's going to be totally up to her if confirmed whether or not to recuse herself, right, whether it comes to any potential questions about the election and the ACA hearing on the 10th of November. Schumer has been calling for her to recuse herself from any election decisions and on the ACA because she wrote in a Law Review essay in 2017, before she was on the bench there, that she said Chief Justice Roberts pushed it beyond its plausible meaning.

JOAN BISKUPIC, CNN SUPREME COURT ANALYST: That's right. So in both of those cases, though, it is up to her. The Supreme Court justices do not have to follow the code of ethics and even if they do, they can say that there is no reason for any reasonable observer to think that I cannot be impartial here, and I expect her to be able to say that and want to say that.

HARLOW: Chairman Lindsey Graham just gaveled in. We're going to monitor this. As they begin their opening statements, you'll hear them live. But let's let them get through the procedural stuff here and talk about some of the key issues.

Jeffrey Toobin, I remember being -- having you by my side on the air when the surprising news of Justice Scalia's death came and we talked a lot about Heller and the Second Amendment decision in Heller for which he wrote the majority opinion. What do we know about Judge Barrett when it comes to the Second Amendment -- hold that thought. Let's go to this.

SEN. LINDSEY GRAHAM (R-SC): The architect of the capital working with the attending physician has set up the room in a fashion that we can safely do our business. Senator Lee is back. You've been cleared by your physician. Welcome back. The COVID problem in America is real. It's serious. It's dangerous. And we have to mitigate the risk.

I would just let every American know that many of you are going to work today, probably already been at work, and I hope your employer will take care of your healthcare needs, but we do have a country that needs to move forward safely and there are millions of Americans, cops, waitresses, nurses, you name it, going to work today to do their job and we're going to work in the Senate to do our job, and one of the most important jobs the Senate Judiciary Committee will ever do is have hearings and confirm a justice to the Supreme Court.

So, for housekeeping purposes, the first day has traditionally been opening statements by my colleagues. We'll do 10-minute rounds and everybody will have 10 minutes to talk about their views of the hearing and what this is all about. Then we will have a panel to introduce Judge Barrett, and she will make an opening statement. We'll try to finish mid-afternoon if that's possible.

Then Tuesday and Wednesday will be long days. There will be 30-minute rounds for every senator, followed by a 20-minute round. My goal is to complete that Wednesday at some kind of reasonably -- reasonable hour in the evening. Thursday, we will begin the mark-up. I intend to hold it over and bring the committee back on the 22nd to vote on the nomination.

[09:05:06]

So, if I may, I'll start off with an opening statement and say, why are we here? Number one, Justice Ruth Bader Ginsburg died on September 18th. What can you say about Justice Ginsburg? She was confirmed 96-3. Now, those were days that have since passed, I regret that. 96-3. Now, this was a person who worked for the ACLU, someone who was known in progressive circles as an icon. Apparently just about every Republican voted for her.

Her good friend on the court, Justice Scalia, I think, got 97 votes. I don't know what happened between then and now. I guess there's -- we can all take some blame. But I just want to remind everybody, there was a time in this country where someone like Ruth Bader Ginsburg was seen by almost everybody as qualified for the position of being on the Supreme Court, understanding that she would have a different philosophy than many of the Republicans who voted for her.

Twenty-seven years on the court. Before becoming a member of the court, she was an active litigator, pushing for more equal justice and better rights for women throughout the country. Her close friend until the -- his death, Justice Scalia, called her the leading and very successful litigator on behalf of women's rights, the Thurgood Marshall of that cause.

What high praise. I can't say any more than that statement says. In my view, the person appearing before this committee is in a category of excellence, something the country should be proud of, and she will have a chance to make her case to be a worthy successor and to become the ninth member of the Supreme Court of the United States. On September 26th, Judge Amy Barrett was nominated by President Trump to the Supreme Court. Who is she? She is a judge sitting on the Seventh Judicial Circuit.

She's highly respected. She was a professor at Notre Dame. Three years during that tenure, she was chosen by the students to being the best professor, which I'm sure is no easy task at any college. She's widely admired for her integrity. She grew up in New Orleans, graduated from Rhodes College in Memphis, Tennessee, in 1994. Graduated summa cum laude and first in her class from Notre Dame Law School in 1997.

So, academically, she's very gifted. She clerked for Judge Lawrence Silberman on the U.S. Court of Appeals for the D.C. Circuit and then for Justice Scalia on the Supreme Court. She practiced law in Washington, D.C. She joined the faculty at Notre Dame in 2002. She's published numerous articles in prestigious journals, including the Columbia, University of Virginia, and Cornell Law Review.

She's been a Circuit Court judge at the Seventh Circuit since 2017. She was confirmed to that position in a bipartisan -- with a bipartisan vote. She has heard hundreds of cases in that capacity. She said, I clerked for Justice Scalia more than 20 years ago, but the lessons I learned still resonate. His judicial philosophy is mine. A judge must apply the law as written. Judges are not policymakers, and they must be resolute in setting aside any policy views they might hold.

She will give her statement, but I think that is a good summary of who she is. That's who Amy Barrett is in terms of the law. In terms of Amy Barrett the individual, she and her husband have seven children, two adopted. So nine seems to be a good number.

[09:10:01]

The process. This is an election year. We're confirming the judge in an election year after the voting has occurred. What will happen is that my Democratic colleagues will say this has never been done and they're right in this regard. Nobody's, I think, ever been confirmed in an election year past July. The bottom line is, Justice Ginsberg, when asked about this several years ago, said that a president serves four years, not three.

There's nothing unconstitutional about this process. This is a vacancy that's occurred through a tragic loss of a great woman and we're going to fill that vacancy with another great woman. The bottom line here is that the Senate is doing its duty constitutionally. As to Judge Garland, the opening that occurred with the passing of Justice Scalia was in the early part of an election year. The primary process had just started.

And we can talk about history, but here's the history as I understand it. There's never been a situation where you had a president of one party and the Senate of another where the nominee and the replacement was made in election year. It's been over 140 years ago. I think there have been 19 vacancies filled in an election year, 17 of the 19 were confirmed to the court when the party of the president and the Senate were the same. In terms of timing, the hearing is starting 16 days after nomination.

More than half of all Supreme Court hearings have been held within 16 days of the announcement of the nominee. Stevens, 10, Rehnquist 13, Powell, 13, Blackman 15, Berger, 13.

All I can say is that I feel that we're doing this constitutionally. That our Democratic friends object to the process, I respect them all. They'll have a chance to have their say, but most importantly, I hope we will know more about how the law works, checks and balances, what the Supreme Court is all about, when this hearing is over.

Why hold this hearing? Lot of people on our side say just ram it through. I hear that a lot. That's why I don't listen to the radio much anymore. So the bottom line is I think it's important. This is a lifetime appointment. I would like the world and the country to know more about Judge Barrett. I'm proud of you. I'm proud of what you've accomplished, and I think you're a great choice by the president.

This is probably not about persuading each other unless something really dramatic happens. All Republicans will vote yes, and all Democrats will vote no. And that will be the way the breakout of the vote. But the hearing is a chance for Democrats to dig deep into her philosophy, appropriately ask her about the law, how she would be different, what's on her mind. It gives Republicans a chance to do the same thing.

Most importantly, it gives you a chance, the American people, to find out about Judge Barrett. Judge for yourself, is this the person -- is this person qualified? Is she as qualified as Sotomayor and Kagan? I think so. These were two nominees presented to the committee by President Obama. They had a different legal philosophy than my own, but I never doubted one moment that they were not qualified.

I thought Gorsuch and Kavanaugh were qualified. The Senate in the past has looked at qualifications more than anything else. We've taken a different path at times, Bork, Thomas, Alito, Kavanaugh. I hope we don't take that path with Judge Barrett. She doesn't deserve that. I don't think it makes this hearing any better. And the American people, I believe, would not deserve a repeat of those episodes in the Senate Judiciary Committee's history.

To my Democratic colleagues, I respect you all. We've done some things together, and we've had some fight in this committee. I've tried to give you the time you need to make your case and you have every right in the world to make your case. I think I know how the vote's going to come out, but I think Judge Barrett is required for the good of the nation to submit to your questions and ours.

[09:15:00]

This is going to be a long contentious week. I would just ask one thing of the committee to the extent possible, let's make it respectful. Let's make it challenging. Let's remember the world is watching. Senator Feinstein.

SEN. DIANNE FEINSTEIN (D-CA): Thanks very much, Mr. Chairman, and I do want to just address your last statement. We feel the same way, and I believe we want this to be a very good hearing, and I certainly will strive to do my best to achieve that. Good morning, Judge Barrett, and welcome to you and your family. Less than one month ago, the nation lost one of our leading voices for equality, Ruth Bader Ginsburg left very big shoes to fill. Judge Ginsburg loved the law, and she loved this country. She worked all of her life to ensure that the opening words of our constitution, "we, the people of the United States", in order to form a more perfect union, included all the people, not just a few elite few.

She was a standard bearer for justice. Justice Ginsburg's nomination was the first one that I participated in when I came to the Senate, and it was a real thrill to be part of that crowded and celebratory hearing for someone who had broken down barriers and reopened doors and staunchly believed in a woman's right to full equality and autonomy. In filling Judge Ginsburg's seat, the stakes are extraordinarily high for the American people, both in the short-term and for decades to come. Most importantly, healthcare coverage for millions of Americans is at stake with this nomination. So, over the course of these hearings, my colleagues and I will focus on that subject.

We will examine the consequences if -- and that's a big if -- Republicans succeed in rushing this nomination through the Senate before the next president takes office. But most importantly, in just a few weeks, on November 10th, the Supreme Court will hear hearings in Texas v. California, a case brought to strike down the ACA. The president has promised to appoint justices who will vote to dismantle that law. As a candidate, he criticized the Supreme Court for upholding the law and said, and I quote, "if I win the presidency, my judicial appointments will do the right thing, unlike Bush's appointee, John Roberts on Obamacare", end quote. And when he appointed Judge Barrett to fill Justice Ginsburg's seat, the president said that eliminating the Affordable Care Act would be, quote, "a big win for the USA".

Judge Barrett, you've been critical of Chief Justice Roberts for his 5-4 opinion upholding the law, stating that Roberts, quote, "pushed the Affordable Care Act beyond its plausible meaning to save the statute", end quote. This well could mean that if Judge Barrett is confirmed, Americans stand to lose the benefits that the ACA provides. So, I hope you will clarify that in this hearing. First, more than 130 million Americans with pre-existing conditions like cancer, asthma or even COVID-19 could be denied coverage or charged more to obtain health insurance. This includes more than 16.8 million Californians with pre-existing conditions. And we are just one state.

But I think you should know how we feel. Secondly, some 12 million working Americans are covered through the ACA's Medicaid expansion. If the act is struck down, they lose their healthcare. Third, more than 2 million Americans under the age of 26 are covered by their parents' health insurance, and they could lose that coverage. Fourth, insurers could charge higher premiums for women simply because of their gender. And fifth, women could lose access to critical preventive services and maternity care, including cancer screenings and well woman visits.

[09:20:00]

Now, the bottom line is this. There have been 70 attempts to repeal the ACA, but clearly, the effort to dismantle the law continues. And they are asking the Supreme Court to strike down the Affordable Care Act. This, I believe, will cause tremendous harm. Consider people like Christina Monroe Garcia(ph) of my home state. At age 60, Christina's eyesight started to fail because of cataracts. She had always struggled to obtain insurance because of pre-existing conditions, including C-sections and epilepsy. The cost of coverage, when it was even offered to her, averaged between $2,500 and $3,000 a month. Far more than she and her husband could afford.

In 2010, she was able to obtain coverage through the Affordable Care Act. Within weeks, she was able to have cataract surgery. This saved her life. Christina(ph) described her reaction when she was able to get coverage through the California Health Exchange following passage of the ACA, and let me quote, "it was like manna from heaven. I cried. After all these years of struggling to obtain coverage, I was able to get insurance through the California Exchange, no questions asked about my pre-existing conditions. The premium was worth $200 a month as compared to the $2,500 to $3,000 monthly payments I would have to pay before the ACA, if I could even get an insurer to offer me coverage."

As Christina further explained, and I quote, "people just don't understand what it was like. The incredible fear before the Affordable Care Act. Having to worry about being able to cover medical expenses, and not being able to find affordable insurance", end quote. We can't afford to go back to those days when Americans could be denied coverage or charged exorbitant amounts. That's what's at stake for many of us, for America with this nomination. And that's why the questions we will ask and the views hopefully that you will share with us are so important. We are now just 22 days from the election, Mr. Chairman. Voting is under way in 40 states.

Senate Republicans are pressing forward, full speed ahead to consolidate a court that will carry their policies forward with, I hope, some review for the will of the American people. President Trump said last week that he had, quote, "instructed my representatives to stop negotiation over a COVID-19 relief package until after the election", end quote. And to, quote, "focus full-time on confirming Judge Barrett to the Supreme Court." When Justice Scalia died in February of 2016, Senate Republicans refused to consider a replacement for his seat until after the election. At the time, Senator McConnell said, the American people should have a voice in the selection of their next Supreme Court Justice.

When asked in October 2018, if Republicans intended to honor their own rule if an opening were to come up in 2020, Chairman Graham promised, quote, "if an opening comes in the last year of President Trump's term, and the primary process has started, we'll wait until after the next election." Republicans should honor this word for their promise and let the American people be heard. Simply put, I believe we should not be moving forward on this nomination, not until the election has ended and the next president has taken office. Thank you, Mr. Chairman. GRAHAM: Thank you very much Senator Feinstein. Senator Grassley.

SEN. CHUCK GRASSLEY (I-A): Welcome, judge. On March 1, 2016, Justice Ginsburg delivered an eulogy for her friend --

POPPY HARLOW, ANCHOR, NEWSROOM: OK --

GRASSLEY: Justice Scalia. Justice Ginsburg --

HARLOW: Right, so you just heard the opening statements there from the Chairman of the Judiciary Committee Senator Lindsey Graham, and the ranking member, the Democrat, Dianne Feinstein. We're going to monitor Senator Grassley's comments as well.

[09:25:00]

It's interesting, you're not going to hear from the nominee, Judge Amy Coney Barrett, until this afternoon in the 2 O'clock hour, it's expected she will read her opening statement. Let's bring back in our team of experts, and Jeffrey Toobin, right before those began, we were in the middle of talking about the Second Amendment case that she did -- that she did rule on and write about in her dissent, and I just wonder if you could explain that to people because it's key. There aren't a whole lot of Second Amendment cases since Heller that have come to the high court, but some key ones could. So, what do we know about her position?

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Well, this has been a source of great frustration to Republicans. They won a great victory in 2008, as you suggest, in Justice Scalia's opinion in Heller, for the first time the Supreme Court said that under the Second Amendment, there is a personal right to own a hand-gun in your home. And the conservatives around the country said, OK, we want to start expanding that right to other kinds of weapons, to having the right to carry weapons out in public, to carry a concealed weapon. All of the gun regulations that have come up around the country, conservatives have wanted to challenge them.

The Supreme Court has been very reluctant to expand on the Heller decision. They have not granted even more gun rights. Judge Barrett, in this one case, seemed very receptive to expanding the Second Amendment right to gun rights, to possess a weapon. You know, bigger weapons, ammunition restrictions ended, you know, larger weapons allowed. These are the issues that the -- and National Rifle Association and its allies want to bring to the Supreme Court and get expanded gun rights. Judge Barrett, in this one case, appeared sympathetic to that, but you know, it was a dissenting opinion --

HARLOW: Yes --

TOOBIN: And you know, she was just on the seventh circuit --

HARLOW: But --

TOOBIN: On the Supreme Court, she'll have a lot more options. HARLOW: It was interesting that the case, Canter versus Barr, because

she said essentially, not all felons should be banned from being able to have a gun. For example, this plaintiff was accused of and convicted of a non-violent crime, and she said, holding this ban constitutional does not put the government through its paces, but instead treats the Second Amendment as a second class right. It was striking to me, Jeffrey, and you put it in layman terms really well. Joan, what about -- what about Roe versus Wade? Because I do think when people read comments from judges on circuit courts saying, well, it's -- you know, it's set, the Supreme Court has said what they've said -- that's so different than when you're a justice on the Supreme Court. And you can change that.

JOAN BISKUPIC, CNN SUPREME COURT ANALYST: That's absolutely right. As an Appeals Court judge, as she testified herself, she is bound by what the Supreme Court does. And Poppy, there's actually something that both the Second Amendment and Roe v. Wade cases have in common here. Both of those issues, right now, without Justice Barrett on the court, hang on the vote of Chief Justice John Roberts, and he was the one who single-handedly, in the most recently completed term, ensured that the justices did not take out -- take up any new gun cases and essentially got rid of the one that was pending there. And he was also the key vote in an abortion rights case last term.

But in both those areas, he has hedged in a way that Justice Barrett might not hedge. So, I think you're exactly right to put these two together, and to think about the consequences of Amy Coney Barrett coming on as a justice, being able to reconsider precedent, something that she could not do when she was on the Appeals Court. And she has written that, again, in an academic vein, not as a judge, that the Supreme Court maybe might have more leeway to consider revisiting some of these precedents. She -- just what she's written as a professor suggests that she would be much more open to reconsidering Roe, reconsidering expansion of Heller, the Second Amendment case from 2008, in a way that Chief Justice John Roberts, who's now at the center of this court, has not been.

HARLOW: Let's not forget, Abby Phillip, that this comes three weeks before an election, an election that, by the way, the most junior member of the Judiciary Committee, Senator Kamala Harris is on the ticket as a vice presidential nominee. I thought "The Washington Post" put it interestingly over the weekend when they said, it will require her to strike a delicate balance. Do you remember how tough -- I think it was an eight-minute exchange when she went back and forth with now Justice Kavanaugh, right? In the middle of those hearings, and got a ton of attention on that. Do you expect her to take the same approach with Judge Barrett, or will it be different? Will it be softer? Will it be walking that tight rope?

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