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Confirmation Hearing For President Trump's Supreme Court Pick, Amy Coney Barrett. Aired 9:30-10a ET

Aired October 13, 2020 - 09:30   ET

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

[09:30:00]

GRAHAM: And here's why your nomination's so important to me: In my world, to be a young conservative woman is not an easy path to take. We have two women on this committee. They can talk about it better than I.

So I want to thank President Trump for choosing you, and I will do everything I can to make sure that you have a seat at the table, and that table is the Supreme Court. And if anybody in the country, in my view, deserves to have a seat at the table based on the way they've lived their life and their capabilities in the law, it is you, Judge. God bless you. Thank you.

BARRETT: Thank you, Chairman Graham.

GRAHAM: Senator Feinstein?

FEINSTEIN: (OFF-MIKE) Mr. Chairman. Judge, it's wonderful to see you here, also with the family that I have been observing. They sit -- sit still, quiet. You've done a very good job.

BARRETT: I have eyes in the back of my head, so I'm watching.

FEINSTEIN: Aw. I was wondering if you might introduce us to them.

BARRETT: Sure. So I have...

FEINSTEIN: ... to us.

BARRETT: ... my husband, Jesse, my son, J.T., my daughter, Emma, my daughter, Juliet, my daughter, Tess, my daughter, Vivian, and my son, Liam (ph).

BARRETT: And then behind them are my six siblings, who are with me today. I'll start the -- the side right behind Vivian. It's my sister Vivian, my sister Eileen, my brother Michael, my sister Megan, and my sister Amanda -- and is Carrie in the room? -- and -- and my sister Carrie is sitting right over there.

FEINSTEIN: You don't have a magic formula for how you do it and handle all of the children and your job and your work and your thought process, which is obviously excellent, do you?

BARRETT: It's improv.

FEINSTEIN: Yes, yes. Well, let me begin with a question that the Chairman touched on, and it's of a great -- it's of great importance, I think, because it goes to a woman's fundamental right to make the most personal decisions about their own body.

And as a college student in the 1950s, I saw what happened to young women who became pregnant at a time when abortion was not legal in this country. I went to Stanford, I saw the trips to Mexico, I saw young women try to hurt themselves and it was really deeply, deeply concerning.

During her confirmation hearing before this committee in 1993, Ruth Bader Ginsburg was asked several questions about her views on whether the Constitution protects a woman's right to an abortion. She unequivocally confirmed her view that the Constitution protects a woman's right to abortion and she explained it like this, and I quote -- "the decision whether or not to bear a child is central to a woman's life, to her wellbeing and dignity. It's a decision she must make for herself. When government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choice," end quote.

At one point, our former colleague Orrin Hatch, then the Ranking Member of this committee, commended her for her being quote "very forthright in talking about that," end quote. So I hope -- and you have been thus far -- be equally forthright with your answers.

In Planned Parenthood of Southeastern Pennsylvania v. Casey, Justice Scalia, as was said earlier, joined the dissent, which took the position, and I quote, "we believe that Roe was wrongly decided and that it can and should be overruled, consistent with our traditional approach to stare decisis in constitutional cases."

Do you agree with Justice Scalia's view that Roe was wrongly decided?

BARRETT: So Senator, I do want to be forthright and answer every question so far as I can. I think on that question, I -- you know, I'm going to invoke Justice Kagan's description, which I think is perfectly put. When she was in her confirmation hearing, she said that she was not going to grade precedent or give it a thumbs up or a thumbs down, and I think in an area where precedent continues to be pressed and litigated, as is true of Casey, it would be particularly -- it would actually be wrong and a violation of the Canons for me to do that as a sitting judge.

So if -- if I express a view on a precedent one way or another, whether I say I love it or I hate it, it signals to litigants that I might tilt one way or another in a pending case.

[09:35:00]

FEINSTEIN: So on something that is really a major cause with major effects on over half of the population of this country, who are women, after all, it's -- it's distressing not to get a straight answer. So let me try again -- do you agree with Justice Scalia's view that Roe was wrongly decided?

BARRETT: Senator, I completely understand why you are asking the question but again, I can't pre-commit or say "yes, I'm going in with some agenda" because I'm not. I don't have any agenda -- I have no agenda to try to overrule Casey, I have an agenda to stick to the rule of law and decide cases as they come.

FEINSTEIN: Well, what I -- as a person -- I don't know if you'll answer this one, either -- do you agree with Justice Scalia's view that Roe can and should be overturned by the Supreme Court?

BARRETT: Well, I -- I think my answer is the same because, you know, that's a case that's litigated, it could -- you know, its contours could come up again -- in fact, do come up. You know, they -- they came up last term before the court.

So I think, you know, what the Casey standard is and -- that just is a contentious issue, which is, I know, one reason why it would be comforting to you to have an answer, but I can't express views on cases or pre-commit to approaching a case any particular way.

FEINSTEIN: Well, that makes it difficult for me, and I think for other women also, on this committee because this is a very important case and it affects a lot of people, millions and millions of women, and you could be a very important vote.

And I had hoped you would say as a person -- you've got a lovely family, you understand all of the implications of family life. You should be very proud of that, I'm proud of you for that. But my position is a little different. You're going on the biggest court of this land with a problem out there that all women see one way or another in their life and -- not all, but certainly married women do and others too.

And so the question comes "what happens and will this Justice support a law that has substantial precedent now?" Would you commit yourself on whether you would or would not?

BARRETT: Senator, what I will commit is that I will obey all of the rules of stare decisis, that if a question comes up before me about whether Casey or any other case should be overruled, that I will follow the law stare decisis, applying it as the court has articulated it, applying all of the factors -- reliance, workability, being undermined by later facts and law, just all of the standard factors -- and I promise to do that for any issue that comes up. Abortion or anything else, I'll follow the law.

FEINSTEIN: Well, I -- I think that's expected and -- well, I -- I guess I've gone as far as I can, let me go to another issue. This country is facing great gun violence. There's been a surge in gun sales during the COVID-19 crisis, which has led to more lives being needlessly lost.

According to the Gun Violence Arcave -- Archive, excuse me, an independent research organization, there were 60 mass shootings in May alone. These shootings killed 40 people, they hurt 250 more. Also, there's been a troubling spike in gun sales. Americans bought approximately 2 million guns this past March. It's the second highest month ever for gun sales. That figure does not take into account all of the gun sales that could not be completed because the purchaser failed a background test -- a check, excuse me, a number that has also skyrocketed. For example, this past March, the FBI's background check system blocked 23,692 sales, more than double the 9,500 sales blocked in March of 2019.

Do you agree that federal, state and local governments have a compelling interest in preventing a rise in gun violence, particularly during a pandemic?

[09:40:00]

BARRETT: Well, Senator, of course the constitutionality of any particular measure that were passed -- that was passed by state or local governments or by this body would be subject to the same judicial process that I described with Senator Graham.

What I will say as -- because this is just descriptive of Heller, Heller leaves room for gun regulations and that's why there has been a lot of litigation in the lower courts, which makes me constrained not to comment on the limits of it, but Heller does not make a right absolute by its -- you know, it says so in the opinion.

FEINSTEIN: Well, let me ask one more question. In a recent dissenting opinion that you wrote, you said there was quote "no question" end quote that quote "keeping guns out of the hands of those who are likely to misuse them" quote is quote "a very strong governmental interest." Do you stand by that statement?

BARRETT: So I don't -- let's see -- I can't remember precisely the words of Kanter, which is the case in which I dissented, which...

(CROSSTALK)

FEINSTEIN: That's right, Kanter v. Barr.

BARRETT: Kanter v. Barr. What I said in that opinion, I stand by, which is that the original meaning of the 2nd Amendment -- and I went through a lot of detailed history in that case -- does support the idea that governments are free to keep guns out of the hands of the dangerous. So for example, the mentally ill, others who would be likely to misuse guns.

FEINSTEIN: So where -- where does that leave you on Roe? The Chairman asked, I thought, a very good question. For many people and particularly for women, this is a fundamental question. We all have our moral values, we have our religions, we live by that. I respect you and your family for doing just that.

But this is a very real problem out there and if you could be more specific in any way with respect how you would view your place on the court with respect to controlling weapons in this country? BARRETT: I think what I can say is that my opinion in Kanter shows how I approach questions as a matter of judicial philosophy. I mean, I -- I spent a lot of time in that opinion looking at the history of the 2nd Amendment and looking at the Supreme Court's cases.

And so the way in which I would approach the review of gun regulation is in that same way, to look very carefully at the text, to look carefully at what the original meeting was. That -- that was the method that both the majority and dissent in Heller took.

So I promise that I would come to that with an open mind, applying the law as I could best determine it.

FEINSTEIN: OK, let me move on. One of my constituents, Christina Garcia (ph), was able to obtain insurance coverage and have surgery that saved her eyesight, only before the Affordable Care Act. Her experience is not unique.

Senator Tammy Baldwin has a constituent, Jimmy Anderson (ph), in her home state of Wisconsin, and she asked that this story be shared -- "Jimmy (ph) is a 34 year old and member of the Wisconsin State Legislature. In 2010, a drunk driver hit the family's car as they were returning home from celebrating Jimmy's (ph) 24th birthday. Jimmy's (ph) mother, father and little brother were killed in the accident. Jimmy (ph) was paralyzed from the waist down. His medical recovery was intense. As Jimmy (ph) has said, quote 'doctors managed to patch me up with dozens of stitches and multiple surgeries and about a pound of steel on my spine,' end quote, but soon after, his insurance company told him he was nearing his lifetime maximums and he would have to pay for the rest of his health care expenses. As Jimmy (ph) explains, quote, 'with hundreds of thousands of dollars still left to go, I don't know what I was going to do. I was scared, I was terrified, I was just a student, I didn't have that kind of money. Fortunately, a few days later, the insurance company sent him another letter. This one informed him that the provisions of the ACA had kicked in, which meant there were no longer lifetime maximums and his care would be covered. In Jimmy's (ph) own words, 'I was able to put my life back together and I credit the Affordable Care Act for that.'"

[09:45:00]

Judge Barrett, how should the loss of ACA's protection against lifetime coverage caps, caps that can be used to end coverage for life-saving care, factor into a court's consideration of the validity of the ACA?

BARRETT: Senator, so far as I know, the case next week doesn't present that issue. It's not a challenge to pre-existing -- existing -- pre- existing conditions coverage or to the lifetime maximum, you know, relief from a cap.

FEINSTEIN: Well, what -- what is your view?

BARRETT: Of how it should factor in? The -- I -- let's see, I think that any issue that would arrive under the Affordable Care Act or any other statute should be determined by the law, by looking at the text of the statute, by looking at precedent, the same way that it would for anyone.

And if there were policy differences or policy consequences, those are for this body. For the court, it's really a question of adhering to the law and going where the law leads and leaving the policy decisions up to you.

FEINSTEIN: For me, my vote depends a lot on these responses because these are life or death questions for people. It's my understanding that you were critical of Justice Roberts for upholding the ACA, stating that he quote "pushed the Affordable Care Act beyond its plausible meaning to save the statute," end quote.

And in what way did Justice -- did the Chief Justice go beyond the ACA's plausible meaning?

BARRETT: So I've written about this and that description is consistent with the way the Chief Justice described in his own majority. That was King v. Burwell, where the court had to decide whether the phrase "established by a state" also included exchanges that were established by the federal government, and the majority in that case acknowledged that treating the phrase "established by a state" as including exchanges established by the federal government was not the most natural reading but for other reasons -- other policy reasons, in canons of interpretation, they chose to adopt the less natural reading.

FEINSTEIN: You see, for me, the case coming up, California v. Texas, puts a whole new weight on your nomination because the Affordable Care Act is now being so well-accepted. I represent the largest state, as does Senator Harris, that we have, and there are just over 10 million people dependent on the activities under this act, and that they be sustained. And so there is really great concern about what your view is. That case is coming up. Can you give us at least your view?

BARRETT: Well, Senator, the issue and the case that's coming up doesn't involve -- it's not the same issue as the ones in NFIB v. Sebelius or King v. Burwell. It's a different issue, so...

FEINSTEIN: Well, then give us both.

BARRETT: Well, let's see. So what I've said, what you quoted to me, was that I thought that the interpretation of the phrase "established by states" was stretched when the court held that it was established by the federal government.

That's not the issue in California v. Texas. The issue in California v. Texas is if whether, now that Congress has just completely, you know, zeroed out the mandate, whether it's still a tax or a penalty. And even if so, is it constitutional? And then even so, is that fatal to the statute? There's a doctrine called severability, which sounds likely to leave (ph), but what it means is, is it OK with the statute? Could you just pluck that part out and let the rest of the statute stand, or is that provision which has been zeroed out so critical to the statute that the whole statute falls?

So really, the issue in the case is this doctrine of severability, and that's not something that I've ever talked about with respect to the Affordable Care Act. Honestly, I haven't written anything about severability that I know of at all.

FEINSTEIN: So you have no thoughts on the subject?

BARRETT: Well, it's a case that's on the court's docket, and the Canons of Judicial Conduct, you know, would prohibit me from expressing a view.

[09:50:00]

FEINSTEIN: OK, I'll move on. On July 30th, 2020, President Trump made claims of voter fraud and suggested he wanted to delay the upcoming election. Does the Constitution gives the president of the United States the authority to unilaterally delay a general election under any circumstances? Does federal law?

BARRETT: Well, Senator, if that question ever came before me, I would need to hear arguments from the litigants and read briefs and consult with my law clerks and talk to my colleagues and go through the opinion-writing process. So you know, if -- if I give off-the-cuff answers, then I would be basically a legal pundit, and I don't think we want judges to be legal pundits. I think we want judges to approach cases thoughtfully and with an open mind.

FEINSTEIN: OK, let me try something else. In 2017, in a case called EEOC v. AutoZone, the Seventh Circuit is -- your circuit issued an opinion which permitted an employer to intentionally assigned its employees to specific stores due to their race. The dissent in this opinion argued the decision; permitted employers to legally establish separate but equal facilities and argued if upheld, this decision would be, quote, "contrary to the position that the Supreme Court has taken in analogous equal protection cases as far back as Brown v. the Board of Education". The case was appealed to the full panel of the Seventh, and you sided, as I understand it, with the majority to deny a rehearing and let the opinion stand. Is that correct?

BARRETT: That is correct, and I think I need to give a little context for what it means to vote to deny to rehear something en banc.

Our court, just like the Supreme Court in the (inaudible) process, doesn't take cases just because we think the panel got it wrong. There's a lot of deference to panels, and Rule 35 of the, you know, Rules of Appellate Procedure constrains and limits the times in which we take the resources of the full court to rehear a case.

So I was not on that panel and I did not express a view on the merits. A vote to deny to hear something en banc is like a vote not to -- to deny (inaudible), not a vote that expresses a view on the merits.

FEINSTEIN: OK.

BARRETT: It was a statutory case; it was not an equal protection case.

FEINSTEIN: Let me ask you a question as a person.

BARRETT: Yes.

FEINSTEIN: If an employer can transfer an employee based solely on his or her race and that does not constitute a materially-adverse employment action because it was purely lateral job transfer, please explain what factors must be present for a policy based on race to violate Brown v. the Board's prohibition of separate but equal.

BARRETT: Well, Senator, to my knowledge, Brown wasn't at issue in the majority opinion. It turned on statutory language in Title VII. But again, I didn't express a view on the merits, and so I can't comment on whether I think that the panel majority got that right or got that wrong. You know, that's an issue that may well come before me. Even in the Seventh Circuit some may press for its overruling, and I may be on a panel that has to decide whether that precedent was wrong.

FEINSTEIN: Well, let me ask you, as a person, do you have a general belief?

BARRETT: As a person, I have a general relief (sic) that racism is abhorrent.

FEINSTEIN: That racism is what?

BARRETT: Abhorrent.

FEINSTEIN: Well, I think that's -- I think we would all agree with that. So how should a lower court in the Seventh determine when race- based policies could constitute a materially-adverse employment action?

BARRETT: Well, I'm not aware of cases presenting the exact same facts as that (inaudible)...

FEINSTEIN: I'm just asking you for your view.

BARRETT: You know, I know that the material adverse consequence was the standard at issue in that case. I have to confess that I would need to look at the statute and the precedent to -- well, even if I had a specific hypothetical in front of me, I couldn't really say without looking at the statute and the precedent what factors are involved because I wasn't on that panel and haven't decided a similar case.

FEINSTEIN: OK, let me go to another issue.

The issue of LGBT equality is very personal for me. I've spent two decades as a county supervisor and mayor of a city.

[09:55:00]

I watched firsthand as the LGBT community fought for legal recognition of their lives, their relationships, their personal dignity. I -- I was there before the law, so I saw in San Francisco what was happening.

I want to speak briefly about one couple, Del Martin and Phyllis Lyon, who I met in the 1970s. They were vibrant members of San Francisco's community.

I was president of the board of supervisors. They worked with me to pass a citywide ordinance in 1978 that provided critical protection against discrimination in employment, housing and public accommodations. At that time, this was one of the strongest protections for the gay community in the entire nation.

We've come a long way since then and I think we should never go back.

In June of 2008, 58 years after they met, my two friends were finally able to marry when the California Supreme Court ruled that same-sex couples cannot be denied the fundamental right to marry. Del died two months later.

Because of the federal Defense of Marriage Act, DOMA, Phyllis was denied Social Security survivor benefits, even though her spouse had paid into this basic safety net for her entire working life. Phyl had to rely on the help of friends and fellow activists.

In 2013, as you probably know because you know so much about this, U.S. v. Windsor, the Supreme Court struck DOMA down. Two years later in Obergefell v. Hodges, the Supreme Court recognized that the fundamental right to marry could not be denied to LGBT Americans.

Both decisions were decided by a 5-to-4 margin. Justice Ginsburg was in the majority. Justice Scalia dissented in both cases.

Now, you said in your acceptance speech for this nomination that Justice Scalia's philosophy is your philosophy. Do you agree with this particular point of Justice Scalia's view that the U.S. Constitution does not afford gay people the fundamental right to marry?

BARRETT: Senator Feinstein -- as I said to Senator Graham at the outset -- if I were confirmed, you would be getting Justice Barrett, not Justice Scalia. So I don't think that anybody should assume that just because Justice Scalia decided a decision a certain way that I would too.

But I'm not going to express a view on whether I agree or disagree with Justice Scalia for the same reasons that I have been giving. Justice Ginsburg, with her characteristic pithiness used this -- this to describe how a nominee should comport herself at a hearing, no hints, no previews, no forecasts.

That had been the practice of nominees before her. But everybody calls it the Ginsburg rule because she stated it so concisely and it's been the practice of every nominee since. So I can't. And I'm sorry to not be able to -- to embrace or disavow Justice Scalia's position. But I really can't do that on any point of law.

FEINSTEIN: Well, that's really too bad because it's rather a fundamental point for large numbers of people, I think, in this country.

I understand you don't want to answer these questions directly. But the great -- you identify yourself with a justice that you, like him, would be a consistent vote to roll back hard-fought freedoms and protections for the LGBT community.

And what I was hoping you would say is that this would a point of difference, where those freedoms would be respected. And you haven't said that.

BARRETT: Senator, I have no agenda and I do want to be clear that I have never discriminated on the basis of sexual preference and would not ever discriminate on the basis of sexual preference. Like racism, I think discrimination is abhorrent.

On the questions of law, however, I just -- because I'm a sitting judge and because you can't answer questions without going through the judicial process -- can't give answers to those very specific questions.

FEINSTEIN: OK. Thank you very much.

Thanks, Mr. Chairman.

GRAHAM: Thank you, Senator Feinstein.

Senator Grassley?

GRASSLEY: Yes.

Judge, I welcome you again.

[10:00:00]