Return to Transcripts main page

CNN Newsroom

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

Aired October 13, 2020 - 08:50   ET

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

[08:50:00]

POPPY HARLOW, CNN ANCHOR: Good morning, everyone. I'm Poppy Harlow.

JIM SCIUTTO, CNN ANCHOR: And I'm Jim Sciutto.

In just minutes day two of hearings for President Trump's supreme court pick, Amy Coney Barrett, will begin.

Today Barrett facing the first round of questions from senators. And if day one is any preview, Democrats set to focus their questioning to Barrett on the Affordable Care Act.

HARLOW: That's right. And a Barrett confirmation is expected to reshape the high court for decades to come. And this all comes within weeks of the election.

We have team coverage again this morning.

Let's begin with our Manu Raju on Capitol Hill for more on what to expect today.

So the questions begin, Manu.

MANU RAJU, CNN SNR. CONGRESSIONAL CORRESPONDENT: Yes. And it's going to be a long day.

Each senator, there's 22 senators on the senate judiciary committee, they will each have 30 minutes apiece to question Judge Barrett.

This will be the first time they'll have a chance to ask questions of Barrett and it'll switch from Republican to Democrat after the chairman of the committee, Lindsey Graham, swears her in, makes some brief remarks. And then they're going to get right at it.

Graham will have his round then followed by the ranking Democrat Dianne Feinstein, she'll have her round. And they'll go back and forth, back and forth, all day long.

Tomorrow will be another round of questioning before the Republicans are planning to push her through before Election Day.

Now today there is going to be a lot of focus on the democratic side about her past criticism before she became a federal judge, a law review article she wrote criticizing the decision to uphold the Affordable Care Act, criticizing John Roberts, the chief justice, his majority opinion in that case.

There'll be a lot of questions from Democrats about that, questions about her past opposition to the Roe versus Wade ruling. Questioning her question on reviews of abortion rights, whether she would recuse herself from any election-related disputes coming after Election Day.

We know in private meetings she has said she'll -- she has not gone as far as Democrats want in saying she would recuse herself from any cases involving the 2020 election. So that will be a topic of conversation that Democrats will focus on. Republicans plan to defend her credentials and talk about her judicial philosophy as well.

Expect a lot of questions about how she views -- as a justice she would be in the mold of the late conservative justice Antonin Scalia. Democrats will draw her out, Republicans, too, on that topic.

And this all comes, guys, as Republicans are planning to push this through quickly.

Lindsey Graham has set a schedule to have a vote in the committee within ten days and then afterwards it would be on the senate floor by October 29th.

And this would be one of the fastest confirmation proceedings in modern history and Republicans appear to have the votes to do just that, guys.

SCIUTTO: Jeffrey Toobin, we talk a lot about judicial philosophy. But I wonder if we can focus on what that means, what her record means for issues that folks listening this morning care about, right?

Affordable Care Act will be the focus today of Democrats questioning but her positions on gun control, on immigration. For instance, she dissented on opinion supporting the Trump administration policy disadvantaging green card applicants who applied for public assistance. Voting rights.

I'm curious. In simple terms, can you give folks a vision of what a six-three court with Barrett on it would mean for issues like this?

TOOBIN: Let me give you an example of something we might actually learn today. Because the Democrats will ask questions about how are you going to vote on the Affordable Care Act case and she's not going to answer them.

But let's think about the question of precedent, stare decisis, the rule of honoring past precedence of the court.

There's actually a difference of opinion among conservatives on how and whether you honor precedents of the court.

Justice Scalia who was Judge Barrett's mentor felt that it was important to honor precedents even when you wouldn't have agreed with them in the first place. That there's some value in the stability of the law.

He didn't feel that in every case, but in many cases he felt that way.

Justice Thomas has a different view. Clarence Thomas thinks that if a case is wrong in his view it should be swept out. That's a much more radical position.

Where does Judge Barrett fall between Justice Scalia and Justice Thomas on that issue? She has written things that suggest she's closer to Justice Thomas.

That's something because it's not relevant to a specific case we might actually get some serious information about today as opposed to how will you vote on case A, B or C?

HARLOW: Yes. That's a really good point. Joan, Noah Feldman, a Harvard law professor, a self-proclaimed liberal who testified against the president in the impeachment proceedings supports her.

And not because he supports her ideology or many of her writings but because he thinks she's a brilliant lawyer.

[08:55:00]

He writes in this opinion piece this week:

"... it is better for the republic to have a principled, brilliant lawyer than a weaker candidate. That is Barrett."

How significant is it to hear that in a moment like this?

JOAN BISKUPIC, CNN SUPREME COURT ANALYST: Well, it's good that she'd be up to the job, certainly.

I don't think anybody has doubted her general credentials, her academic credentials, her ability to get the job done.

She's a very clear writer, she certainly has a top-notch background. She worked at the supreme court, she did two prestigious clerkships. So there's -- I don't think anybody has challenged that about her.

It's what she then does with those credentials and those brains and what that would be like. I can't think of anyone in recent history who we've really questioned are they truly not up to the job.

So I think Noah Feldman from the start has praised her and I think that's a good thing coming from him. There are other people who were law clerks with her who wouldn't take that position.

But one thing he's touched on is her personality in addition to her credentials. And maybe we'll see some of that today.

Thinking back to past confirmation hearings when nominees sort of let their guard down a little bit, flashed a little sense of humor, will we see that from this very disciplined person? Would she ever give us what Justice Kagan gave us when a member of the

committee asked where she was on Christmas eve the night of a terrorist incident. And she said, "Like any Jew, I was at a Chinese restaurant."

HARLOW: Right.

BISKUPIC: Or when Chuck Schumer challenged John Roberts saying you haven't given us any information, you won't even tell us your favorite movies. And just as his microphone was being cut off Roberts start saying, "North by Northwest."

So if we see some of that, maybe we'll see some of the personality that certainly has enamored her to Noah who she worked with at the court.

So I don't discount his opinion, I just say that for the kind of lifetime position she has there's much more that the senators should consider.

SCIUTTO: Yes.

HARLOW: Yes. I think that's a really fair and important point. We're going to rerack this tape so folks can see the judge walking in for her second day of hearings.

It's about to begin any minute.

SCIUTTO: Dana Bash, given that this is, of course, a lifetime appointment and given that this would move the court to a six-three conservative majority and given that even in a democratic-controlled legislature, even if, say, the Democrats take the White House, a lot of legislative decisions might run up against this court.

That includes healthcare but other issues. Gun control -- I mentioned to Jeffrey before -- immigration, et cetera.

Can you make an argument that this vote in these next couple of weeks is even more important than November 3rd to some degree in terms of its long-term effect?

DANA BASH, CNN CHIEF POLITICAL CORRESPONDENT: Yes, absolutely. In terms of its long-term effect. She's a young woman and that's one of many reasons why Donald Trump that she was perfect to pick her.

I will say that I totally agree with what Joan is saying about the fact that there are so many things to look at with regard to Amy Coney Barrett's record with regard to how she would rule on the court.

But it wasn't that long ago that the notion of a nominee being qualified was the most important thing and that led to massive bipartisan approvals of people on both sides of the aisle --

BISKUPIC: Yes.

BASH: People who -- and these are her children walking in. I should say, which is also part of her story and part of what she talked about yesterday. That she would be the first sitting justice to have school-aged children, not to mention a big family but who will be raising children.

Obviously, we've had women like Ruth Bader Ginsburg who by the time she was on the court she had her children out of the house and even grandchildren --

SCIUTTO: Yes.

BASH: It's a very different scene right now. But it wasn't that long ago that we had big bipartisan votes, which is the point I was making, from Ruth Bader Ginsburg to Scalia --

SCIUTTO: Yes.

BASH: -- because both sides thought that that was the prerogative of the president. And the fact that this is being done right now during an election, it's going to make those -- as we've already seen -- those political differences front and center.

SCIUTTO: Yes. There she is sitting down. Amy Cony Barrett, about to take questions from senators.

And to your point, Poppy, you often mentioned this on the air, RBG was confirmed 96-3.

We are likely going to see a lifetime appointment by a party line vote here --

HARLOW: Yes.

SCIUTTO: Very slim majority.

HARLOW: Even in her confirmation at the seventh circuit three years ago, Jeffrey Toobin, it was only 55 senators who voted. For that, still, though, three Democrats did vote for her then and they will likely not now.

What's your biggest question for her today, Jeffrey?

TOOBIN: Well, as I say, I think it's about precedent. Can I just add one point to what dana had said?

[09:00:00]

HARLOW: Sure.

TOOBIN: You know, she's the first woman to be the parent of school- aged children while a justice. The men have had school-aged children. You know, John Roberts had school-aged children. Bret Kavanaugh had school-aged children. Dads are parents, too.

BASH: Amen.

HARLOW: And -- BASH: Fair, fair point.

HARLOW: And she -- and, Jeffrey, she has spoken importantly in recent weeks about how much of the parenting her husband does, which I think is notable and very important, too. She's made a point of -- she said that in the Rose Garden. But your biggest question for her today, Jeffrey.

TOOBIN: It's about precedent, is that, you know, how much she wants to sweep aside precedent she disagrees with.

UNIDENTIFIED MALE: And here we go.

GRAHAM: Good morning, everyone. Welcome back. Judge, thank you. Good day yesterday. Family did great. Y'all clean up well. You look good.

So the game plan for today is to do our first round of 30-minute questioning. Each senator will have 30 minutes to interact with Judge Barrett, then we'll follow up with a second round of 20 minutes. That's what we've been doing in the committee since I've been here. I doubt -- I know we won't get it all done today, but the goal is to get through the first 30-minute period today, then come back Wednesday and finish up, and then we'll go on about our business. So I will try to -- I'll make sure I stay within 30 minutes for sure, and if I can shorten it up, I will.

So let's get to it. You can start the clock. So you can relax a bit here, Judge, and take your mask off.

So yesterday, we had a lot of discussion about the Affordable Healthcare Act (sic). What I'm going to try to do very briefly this morning is to demonstrate the difference between politics and judging. All of my colleagues on the other side had very emotional pleas about Obamacare, charts of people with pre-existing conditions. I want to give you my side of the story about Obamacare. Now, this is Lindsey Graham, the senator from South Carolina, talking. This is not a question directed at you.

From my point of view, Obamacare has been a disaster for the state of South Carolina. All of you over there want to impose Obamacare on South Carolina. We don't want it. We want something better. We want something different. You know, what we want in South Carolina? South Carolina-care, not Obamacare.

Now, why do we want that? Under the Affordable Care Act, three states get 35 percent of the money, folks. Can you name them? I'll help you: California, New York and Massachusetts. They're 22 percent of the population. Senator Feinstein's from California, Nancy Pelosi's from California, Chuck Schumer, the leader of the Democratic Senate, is from New York, and Massachusetts is Elizabeth Warren.

Now, why do they get 35 percent of the money when they're only 22 percent of the population? That's the way they designed the law: The more you spend, the more you get.

What does it mean for the people of South Carolina? If you had a per- patient -- per-patient formula where you've got the same amount from the federal government to the state, whether you lived in Charleston, Columbia, or San Francisco or New York City, if you leveled that out, it'd be almost a billion dollars more for us in South Carolina.

So to my friends over there, we're going to fight back, we want our money. If you're going to have money allocated for Obamacare, we're not going to sit back and quietly let you give 35 percent of it to three states.

What else is happening in South Carolina? Four rural hospitals have closed because the revenue streams are uncertain. Thirty percent increase in premiums in South Carolina for those on Obamacare.

I was on Obamacare for a few years before I got on TRICARE. My premiums went up 300 percent, my coverage was almost non-existence, a $6,000 deductible. So I want a better deal.

And that's a political fight. I'm in a campaign at home.

If it were up me we would block grant this money, send it back to the states in a more allocation, and we would require pre-existing conditions to be covered as part of the block grant. We want sick people covered but I got an idea. I think South Carolina may -- may be able to deal with diabetes better than -- and different than California. If you want good outcomes to medicine you need innovation. And the best way to get innovation is to allow people to try different things to get better outcomes.

So the debate on health care is consolidating all the power in Washington, have some bureaucrat you'll never meet running this program versus having it centered in the state where you live.

[09:05:00]

Under my proposal, South Carolina would get almost a billion dollars more, the state of South Carolina would be in charge of administering Obamacare. They couldn't build football stadiums with the money. They'd have to spend it on health care, they'd have to cover pre- existing conditions. But if -- as a patient in South Carolina you would have a voice you don't have today. If you didn't like what was happening to you on the health care front, you could go to local officials and complain. And the people you're complaining to live in your state. They send their family to the same hospital as you go.

That's a structural difference. That's got nothing to do with this hearing; it's got everything to do with politics.

We, on this side, do not believe Obamacare is the best way to provide quality health care over time. Our friends on the other side, this is a placeholder for single-payer health care. If you don't believe me just ask them.

So that's the fight going into 2020. Doesn't make them bad it just makes them different.

If it were up to me, bureaucrats would not be administering health care from Washington, people in South Carolina would be running health care. If it were up to me, we'd get more money under Obamacare than we do today, 35 percent would not go to three states and sick people would be covered.

So that's the political debate. We're involved in a campaign in South Carolina. My fate will be left up to the people of South Carolina.

So that's what Obamacare is all about. Now, how do you play in here, Judge?

There's a lawsuit involving the Affordable Care Act before the Supreme Court and we'll talk about that in a bit. And the difference between analyzing a lawsuit and having a political argument is fundamentally different, and I hope to be able to demonstrate that over the course of the day.

And I hope that my colleagues on this side of aisle will not feel shy about telling my colleagues on the other side of the aisle why we think we have a better idea on health care.

Now, the bottom-line here, Judge, you said yesterday something that struck me and I want the American people to understand what you meant. You said you're an originalist, is that true?

BARRETT: (OFF-MIKE)

GRAHAM: What does that mean in English? I'll pass the button -- I mean, we all love Senator Lee, but in English?

BARRETT: In English.

OK, so in English that means that I interpret the Constitution as a law, that I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it.

GRAHAM: Yeah.

BARRETT: So that meaning doesn't change over time and it's not up to me to update it or infuse my own policy views into it.

GRAHAM: So in other words, you're -- you're bound by the people who wrote it at the time they wrote it. That keeps you from substituting your judgment for theirs. Is that correct?

BARRETT: Yeah.

GRAHAM: All right. Justice Scalia, he was an originalist, right?

BARRETT: Yes, he was.

GRAHAM: People say that you're a female Scalia. What would you say?

BARRETT: I would say that Justice Scalia was obviously a mentor, and as I said in the -- when I accepted the president's nomination, that his philosophy is mine, too. You know, he was a very eloquent defender of originalism, and that was also true of textualism, which is the way that I approach statutes and their interpretation. And similarly to what I just said about originalism, for textualism, the judge approaches the text as it was written with the meaning it had at the time, and doesn't infuse her own meaning into it.

But I want to be careful to say that if I'm confirmed, you would not be getting Justice Scalia; you would be getting Justice Barrett, and that's so because originalists don't always agree, and neither do textualists. Justices Scalia and Thomas disagreed often enough that my friend, Judge (inaudible), teaches a class called "Scalia Versus Thomas." You know, it's a mechanical exercise.

GRAHAM: Well, I'll wait 'til the movie comes out.

(LAUGHTER)

So the bottom line for me is there is a narrative building in this country -- and again, you can stand down. This is just me speaking for me. Justice Ginsburg was an iconic figure in American history, just not the law. She was a trailblazer. She fought for better conditions for women throughout society. She was unashamedly progressive in her personal thought. She was devout to her faith. She worked for the ACLU. She was proudly pro-choice personally, but all of us on this side, apparently, when they voted, accepted that she was highly- qualified.

What I want the American people to know -- I think it's OK to be religiously conservative. I think it's OK to be personally pro-choice. I think it's OK to live your life in a traditional Catholic fashion, and you still be qualified for the Supreme Court.

[09:10:00]

So all the young conservative women out there, this hearing to me is about a place for you. I hope when this is all over that you -- there'll be a place for you at the table. There'll be a spot for you at the Supreme Court like there was for Judge Ginsburg.

And to President Trump, I don't know if you're listening or not, by picking Judge Barrett you have publicly said you find value in all of these characteristics, but beyond anything else, you find Judge Barrett to be highly-qualified. I would say you're one of the greatest picks President Trump could have made, and from the conservative side of the aisle, you're one of the most qualified people of your generation.

Let's talk about Brown versus Board of Education, because I know Senator Blumenthal will. I'm going to talk about that. You said in writings it was a super-precedent. What did you mean?

BARRETT: Well, in my writings -- so as a professor I talked about the doctrine of stare decisis. A super-precedent is not a doctrinal term that comes from the Supreme Court, and I think maybe in political conversation or in newspapers people use it different ways. But in my writing, I was using a framework that's been articulated by other scholars, and in that context, super-precedent means precedent that is so well-established that it would be unthinkable that it would ever be overruled, and there are about six cases on this list that other scholars have identified.

GRAHAM: Let's talk about Brown and talk about why it'd be unthinkable.

First, let's talk about what's the process that would lead to it being overruled? What would have to happen?

BARRETT: For Brown to be overruled you would have to have Congress or some state or local government impose segregation again -- open segregation...

GRAHAM: OK. Let's start right there. If you want to make yourself famous by the end of the day, you can say we want to go back to segregation, I promise you you will be on every cable TV channel in America. I doubt if you'll go very far.

But the point we're trying to make here is, the court just can't wake up and say, "Let's revisit Brown," it has to be a case in controversy, is that right?

BARRETT: Yes. That's right.

GRAHAM: So, before a Brown decision -- you could review Brown, somebody out there would have to be dumb enough to pass a law saying, "Let's go back to segregated schools," is that fair to say?

BARRETT: That is fair to say.

GRAHAM: Do you see that happening anytime soon?

BARRETT: I do not see that happening anytime soon.

GRAHAM: Yeah, I don't either.

So, let's talk about the process in general. There's the Heller case; what's that about?

BARRETT: The Heller case is a case decided by the Supreme Court which held that the Second Amendment protects an individual right to bear arms.

GRAHAM: OK. Now, my friends on the left, some of them have a problem with Heller, they may try to challenge the construct of Heller. If a state or local government passed a law in defiance of Heller, what would happen?

BARRETT: In defiance of Heller or...

GRAHAM: Or that was challenging the construct of Heller.

BARRETT: That challenged the construct of Heller. If it was a lower -- if it was brought in a lower court, Heller binds -- I mean, Heller's -- lower courts always have to follow Supreme Court precedent...

GRAHAM: And if the -- if the Supreme Court wanted to revisit Heller, what would they do? BARRETT: If someone challenged Heller below because a state or local government passed a law contradicting Heller, the Supreme Court would have to take that case once it was appealed all the way up. So the court would have to decide, "Yes, we want to overrule Heller and we have enough votes to grant cert," and then do so.

GRAHAM: So that's the way the process works?

BARRETT: Yes. It would start because there was a law, then there was a lawsuit, then there was an appeal, then the court granted cert, and then the court decided the case.

GRAHAM: Is that true no matter what the issue is? Whether it's guns, abortion, health care, campaign finance, does that process hold true for everything?

BARRETT: Yes. You always -- not -- judges can't just wake up one day and say, "I have an agenda, I like guns, I hate guns, I like abortion, I hate abortion" and walk in like a -- a royal queen and impose, you know, their will on the world. You have to wait for cases in controversy, which is the language of the Constitution, to wind their way through the process.

GRAHAM: All right. Well, Senator Sasse gave us a good civics lesson; I hope that's the basic lesson in law here.

So, if a state said, "You know, I don't think you should have over six bullets," and somebody believed that violated the Second Amendment, there would be a lawsuit and the same process would work, right?

BARRETT: The same process would work. In that case, there would be -- parties would have to sue the state who -- you know, arguing that that law was unconstitutional. It would wind its way up. And if it got to the Supreme Court and if the Supreme Court decided to take it, a whole decision-making process begins. You hear arguments from litigants on both sides, they write briefs, you talk to clerks as a judge, you talk to your colleagues, and you write an opinion, opinions circulate and you get feedback from your colleagues.

So, it's an -- it's an entire process. It's not something that a judge or justice would wake up and say, "Ah, we're hearing this case and I know what my vote's going to be."

[09:15:00]

GRAHAM: Let's talk about the two Supreme Court cases regarding abortion. What are the two leading cases in America regarding abortion?

BARRETT: Well, I think most people think of Roe v. Wade. And Casey is the case after Roe that preserved Roe's central holding, but grounded it in a slightly different rationale.

GRAHAM: So what is that rationale?

BARRETT: Rationale is that the state cannot impose an undue burden on a woman's right to terminate a pregnancy.

GRAHAM: OK. Unlike Brown, there -- there are states challenging on the abortion front. There are states that are going to a fetal heartbeat bill. I have a bill, Judge, that would disallow abortion on demand at the 20 weeks -- the fifth month of the pregnancy.

We're one of seven nations in the entire world that allow abortion on demand in -- at the fifth month. The construct of my bill is because a child is capable of feeling pain in the fifth month, doctors tell us to save the child's life, you have to provide anesthesia if you operate, cause they can feel pain.

The argument I'm making is if you have to provide anesthesia to save the child's life cause they can feel pain, must be a terrible death to be dismembered by an abortion. That's a theory to protect the unborn at the fifth month.

If that litigation comes before you, will you listen to both sides?

BARRETT: Of course. I'll do that in every case.

GRAHAM: So I think 14 states have already passed a version of what I've just described. So there really is a debate in -- in America still, unlike Brown v. Board of Education, about the rights of the unborn. That's just one example.

So, if there's a challenge coming from a state, if a state passes a law and it goes into court where people say "this violates Casey," how do you decide that?

BARRETT: Well it would begin in a district court, in a trial court. You know, the trial court would make a record. You know, the parties would litigate and fully develop that record in the trial court, then it would go up to a court of appeals that would review that record, looking for error, and then again it would be the same process -- someone would have to seek (inaudible) at the Supreme Court, the Supreme Court would have to grant it, and then at that point, it would be the full judicial process.

It would be briefs, oral argument, conversations with law clerks in chambers, consultation with colleagues, writing an opinion, really digging down into it. It's not -- it's not just a vote. You all do that, you all have a policy and you cast a vote. The judicial process is different.

GRAHAM: OK. So when it comes to your personal views about this topic, do you own a gun?

BARRETT: We do own a gun.

GRAHAM: OK. All right. Do you think you could fairly decide a case, even though you own a gun?

BARRETT: Yes.

GRAHAM: All right. You're Catholic? BARRETT: I am.

GRAHAM: I think we've established that. The tenets of your faith mean a lot to you personally, is that correct?

BARRETT: That is true.

GRAHAM: You've chosen to raise your family in the Catholic faith, is that correct?

BARRETT: That's true.

GRAHAM: Can you set aside whatever Catholic beliefs you have regarding any issue before you?

BARRETT: I can. I have done that in my time on the 7th Circuit. If I stay on the 7th Circuit, I'll continue to do that. If I'm confirmed to the Supreme Court, I will do that still.

GRAHAM: I would dare say that there are personal views on the Supreme Court and nobody questions whether our liberal friends can set aside their beliefs. There's no real question -- no reason to question yours, in my view.

So the bottom line here is that there's a process. You fill in the banks, whether it's about guns in (inaudible), abortion rights -- let's go to Citizens United. To my good friend Senator Whitehouse, me and you are going to come closer and closer about regulating money cause I don't know what's going on out there but I can tell you there's a lot of money being raised in this campaign. I'd like to know where the hell some of it's coming from.

But, that's not your problem. Citizens United says what?

BARRETT: Citizen United extends the protections of First Amendment to corporations who are engaged in political speech.

GRAHAM: So if Congress wanted to revisit that and somebody challenged it in their -- under Citizens United, that Congress went too far, what would you do, how would the process work?

BARRETT: Well it'd be the same process I've been describing. First, somebody would have to challenge that law in a case, somebody presumably who wanted to spend the money on a political campaign. It would wind its way up and, you know, judges would decide it after briefs and oral argument and consultation with colleagues and the process of opinion writing.

[09:20:00]

GRAHAM: OK. Same sex marriage. What's the case that established same sex marriage as the law of the land?

BARRETT: Obergefell.

GRAHAM: OK. If there was a state who tried to outlaw same sex marriage and there's litigation, would it follow the same process?

BARRETT: Well it would, and one thing I've neglected to say before that's occurring to me now is that not only would someone have to challenge that statute and, you know, somebody -- so if they -- if they outlaw -- if they outlawed same sex marriage, there would have to be a case challenging it, and for the Supreme Court to take it up, you'd have to have lower courts going along and saying "we're going to flout Obergefell."

And the most likely result would be that lower courts who are bound by Obergefell, which shuts such a lawsuit down and it wouldn't make its way up to the Supreme Court, but if it did, it would be the same process I've described.

GRAHAM: Well let's turn now to Senator Hawley's favorite topic -- substantive due process. As a legal theory, what am I talking about? Can you explain it for the country? Cause if you can't, we're in trouble. I think I'll have a hard time doing it.

BARRETT: So both the 14th and 5th amendments protect life -- or provide that the state cannot take life, liberty or property without due process of law. And that sounds like a procedural guarantee but in Supreme Court precedent, it has a substantive component.

And so the substantive due process law says that there are some liberties, some rights that people possess that the state can't take away or can't take away without a really good reason -- so the right to use birth control, the right to an abortion are examples of rights protected by substantive due process.

GRAHAM: These are judicially created rights not found in the document called the Constitution. Is that correct?

BARRETT: Well the Supreme Court has grounded them in the Constitution...

GRAHAM: But they're not written...

BARRETT: They're not expressed.

GRAHAM: OK. So is it fair to say there's a great debate in the law about how far this should go and what limits should apply, if any?

BARRETT: That's fair to say. There's also a lot of debate in Supreme Court opinions. I'm not aware of anybody proposing to throw it over entirely but there's certainly a debate about how to define these rights and how far it should go.

GRAHAM: Well let's just say that you're in the camp or anybody's in the camp that substantive due process as a legal concept is unbounded, it basically makes the Constitution no more certain than the five people interpreting it at any given time in the country. "Whatever rights they think you have, you get, whatever rights they want to take away from you, they can" is a pretty nebulous legal concept. That's sort of my view of it, I'm not imposing my views on yours. But then there's a thing called precedent. Let's say you didn't like a case decided under substantive due process, you thought the whole concept was constitutionally in error. How does precedent play?

BARRETT: So precedent is the principle that cases that have been decided by the court before this one lands on the docket are presumably controlling. And so, you know, precedent comes from a concept called stare decisis, which is a shorthand for a longer Latin phrase that means "stand by the thing decided and do not disturb the calm."

So precedent is a principle that you're not going to overrule something without good reason or roil up the law without justification for doing so.

GRAHAM: So you could say "I -- the underlying analysis that led to any case, just Case X -- I reject that analysis but I will now apply precedent to whether or not it should be reversed." Is that what you're telling us?

BARRETT: That is.

GRAHAM: OK.

BARRETT: Because precedent is (inaudible)...

GRAHAM: What other factors would a judge look at in terms of overruling a precedent?

BARRETT: Well, of course, the inquiry begins because there's been some argument that the precedent was wrong, but that's not enough to justify an overruling. You also consider...

GRAHAM: You could say structurally, this case shouldn't -- constitutionally, it was wrongly-decided, but that doesn't end the debate. Is that correct?

BARRETT: No, that's right. You have to look at reliance interest. You have to look whether the law or the facts...

GRAHAM: Well, stop right quick. Reliance interest by who?

BARRETT: Reliance interest by those who have relied on the precedent. So...

GRAHAM: The people of the United States.

BARRETT: The people of the United States, who've ordered their affairs around it.

GRAHAM: So the Heller case, people have relied upon the Second Amendment being an individual right. Is that correct?

BARRETT: Precedent, yeah, presumably so. People have...

GRAHAM: Yeah. Well then, abortion'd be the -- the right to have abortion -- that'd be a -- a reliance factor, right?

BARRETT: The court in Casey spent a lot of time describing the reliance of people on the right to an abortion.

GRAHAM: OK. So what I want the -- the public to know is that if you overrule a precedent of the court, even if you think it was wrongly- decided, there's a list of things you have to look at before you actually overrule the case. Is that a fair way of saying it?

BARRETT: It's a fair way of saying it.

GRAHAM: Would you apply those factors if you ever found yourself in a position where you wanted to consider overruling a precedent?

BARRETT: Absolutely.

GRAHAM: OK. Have precedents of the court been overruled before?

BARRETT: Yes.

[09:25:00]

GRAHAM: Can you give me an example?

BARRETT: Brown v. The Board of Education overruled Plessy v. Ferguson to get rid of the separate but equal doctrine.

GRAHAM: OK. So recusal -- my colleagues are asking you to recuse yourself from litigation around the Affordable Care Act. What's the precedent regarding the Affordable Care Act, if any?

BARRETT: The -- the precedent that might -- well...

GRAHAM: Is there precedent on this issue?

BARRETT: There's not precedent on the issue that's coming up before the court. It's -- it turns on a doctrine called severability, which was not an issue in either of the two big Affordable Care Act cases.

GRAHAM: OK, so the -- the issue that was before the court was NFIB v. Sebelius. Is that correct?

BARRETT: That was the first, about the constitutionality of the mandate.

GRAHAM: OK, and I think Congress has zeroed out what the court called a tax, and the real issue now is, does it stand, and can it be severable?

BARRETT: Right. So the issue now is now that Congress has zeroed it out, is it -- can it be called a tax, or is it now a penalty? And then the second issue is if it is a penalty, can it be just cut out from the statute so that the rest of the statute, including protection for pre-existing conditions stands.

GRAHAM: Well, a lot smarter people than me suggest that severability would be a hard challenge for those who are opposing the law, but time will tell. Do you feel like you should recuse yourself from that case because you're being nominated by President Trump?

BARRETT: Well, Senator, recusal itself is a legal issue. You know, it -- there's a statute, 28 USC 455, that governs when judges and justices have to recuse. There's precedent under that rule. Justice Ginsburg, in explaining the way recusal works, said that it's always up to the individual justice, but it always involves consultation with the colleagues, with the other eight justices. So that's not a question that I could answer in the abstract.

GRAHAM: So if you're appointed by Obama, that's no reason to recuse yourself in a case involving Obama policy. Is that correct?

BARRETT: Well, that would be a decision for each...

GRAHAM: Right.

BARRETT: ... justice to make.

GRAHAM: But if a justed had a -- justice had a conflict with a particular policy issued, they helped draft it, that would be a consideration. Is that correct?

BARRETT: That would be a consideration.

GRAHAM: OK. So when it comes to recusing yourself, you will do what the Supreme Court requires of every justice.

BARRETT: I will.

GRAHAM: OK. Thank you very much. How -- how does it feel to be nominated for the Supreme Court of the United States?

BARRETT: Well, Senator, I've tried to be on a media blackout for the sake of my mental health, but you know, you can't keep yourself walled off from everything, and I'm aware of a lot of the caricatures that are floating around.

So I think what I would like to say in response to that question is that, look, I've made distinct choices. I've decided to pursue a career and have a large family. I have a multi-racial family. Our faith is important to us. All of those things are true, but they are my choices. And in my personal interactions with people -- I mean, I have a life brimming with people who've made different choices and I've never tried, in my personal life, to impose my choices on them.

And the same is true professionally. I mean, I apply the law, and -- and Senator, I think I should just say why I'm sitting in this seat, in response to that question, too; why I've agreed to be here, because I don't think it's any secret to any of you or to the American people that this is a really difficult, some might say excruciating process. And Jesse and I had a very brief amount of time to make a decision with momentous consequences for our family. We knew that our lives would be combed over for any negative detail. We knew that our faith would be caricatured. We knew our family would be attacked. And so we had to decide whether those difficulties would be worth it, because what sane person would go through that if there wasn't a benefit on the other side?

And the benefit, I think, is I'm committed to the rule of law and the role of the Supreme Court in dispensing equal justice for all. And I'm not the only person who could do this job, but I was asked, and it would be difficult for anyone. So why should I say someone else should do the difficulty? If the difficulty is the only reason to say no, I should serve my country. And my family's all-in on that because they share my belief in the rule of law.

GRAHAM: Well, thank you. I think a lot of people would say you've got to be sort of insane to run for the Senate in this world. But the good news for you -- we all -- we've all chosen kind of crazy stuff to do.

I'd just end with this: I'm glad you said yes. I'm glad President Trump chose you. And really, before the people of the United States is a very basic question: Is it OK to be religiously conservative? Is it OK to be pro-life in your personal life? It clearly is OK to be progressive and be pro-choice and seek the -- a -- a seat on the Supreme Court. I think resoundingly yes.

[09:30:00]