Return to Transcripts main page

CNN Newsroom

Trump's Supreme Court Pick Faces Senators' Questions. Aired 10- 10:30a ET

Aired October 13, 2020 - 10:00   ET

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

[10:00:00]

SEN. CHUCK GRASSLEY (R-IA): And you can rest for a minute because I've got some things to say my colleagues, but more importantly so people around the country understand what's going on here.

First of all, for your family and friends, I'm sure they're very proud, and they ought to be. I think everybody recognizes your sharp intellect, a deep understanding of and even great reverence for the Constitution. Your legal experience and public service are impressive. Your dedication to mentoring young students and women in the legal profession ought to be admired by everybody. In all respects you're exceptionally qualified to be a justice.

Many groups and individuals have written in strong support. So I guess now that the chairman is gone, I'm going to ask, as the next one ranking, I got some letters from 21 state lieutenant governors and from 20 secretaries of state that I want to put in the record at this point.

Before I question, I have a few points to make. Yesterday, my Democratic colleagues spoke about their concern that you, Judge, wouldn't uphold certain laws, including the Affordable Care Act, and that you would strip Americans of their healthcare rights and those protections that come with it. These opponents said that Republicans just want to confirm you so that you, quote, will carry their policies forward, meaning, Republican policies forward on the Supreme Court.

But this only shows Democrats fundamentally misunderstand what judges are supposed to do. A judge is supposed to interpret laws in an impartial manner, consistent with the Constitution. Republicans aren't interested in seeing judges, quote/unquote, carry their policies forward. Republicans want judges to interpret the law and the Constitution, not make law. We want judges that won't impose their policies and personal preferences in their decision-making, plain and simple.

Policymaking is not the proper role of the judicial branch. That role is reserved for legislative and executive branches. As the judge said, the political branches, elected by and accountable to the people because you got a lifetime appointment. And if you do lawmaking, we can't vote you out of office. Lawmaking is our job. If people don't like what we do, they can vote us out of office. Some other points on the Affordable Care Act, the Democrats continue to misrepresent or claim to know Barrett's view on affordable care and access to health care. In fact, they made it their entire game plan yesterday. And I suppose today, we'll see it again. But we should dispense with the total fiction the Democrats are peddling.

Apparently, her technical concerns would teach Chief Justice Roberts' legal reasoning in the Obama decision disqualifies her. Democrats are painting the judge as heartless and on a mission to scrap the health care law. Frankly, that's absurd. Not only is Judge Barrett a mother of seven. She has children with pre-existing medical challenges of her own. No one on this committee or anyone has any right to suggest that she doesn't care about access to health care or protection for the vulnerable.

Now, getting back to the technical concerns about Roberts' Affordable Care Act opinion, first, and I got four points along this line, her comments dealt with Roberts' statutory interpretation of just one provision of the law. That provision is no longer even in effect. In 2017, Congress zeroed out the so-called tax, the tax connected with the individual mandate.

The question before the court this fall are entirely separate. She never ruled on the Affordable Care Act, nor commented on how she'd vote, meaning the judge, how she would vote. So, it's pointless to speculate.

[10:05:01]

But we're going to get a lot of speculation during this election season, just two and a half weeks before the election.

Now, second point, lawyers and legal academics often consider a court reasoning even when they have no disagreement with the outcome of the case. For instance, The New York Times recently reported Ginsburg, before joining the Supreme Court, quote, wasn't really fond of Roe v. Wade. She didn't like how it was structured, end quote. I don't blame -- or don't know why Democrats have a different standard for you, Judge Barrett.

Now a third point, it's blatantly inconsistent for the left to use this line of attack. We all know that President Obama said that the ACA legislative mandate was not a tax. Even liberal Jeffrey Toobin said Roberts' argument was, quote, not a persuasive one, end quote. So, Judge Barrett's analysis of Roberts' reasoning is well inside the mainstream.

Now fourth point, more inconsistency, the same Democrats vilify Judge Barrett as a threat to those with pre-existing conditions. Well, it seems that those same people just filibustered the COVID relief bill that would have protected pre-existing conditions. They're the ones that blocked the COVID relief legislation. Republicans stood ready to move forward with that bill and remain ready. Seems to me it's the other side who really playing politics with health care during a pandemic. The truth is, Judge Barrett already said, quote, a judge must apply the law as written, end of quote. She further commented, quote, to decide cases to the rule of law beginning to end, end of quote. That's what we should look for all judges to do.

Now, for my first question, when Justice Scalia came to my office before his confirmation, and I think I brought this up with every nominee to the Supreme Court by Republican or Democrat nominees, I don't think I brought it up in my private conversation with you, but I always bring it up, what's your attitude about legislative history?

No, let me ask my question first. I'm sorry.

AMY CONEY BARRETT, SUPREME COURT NOMINEE: Sorry, I thought that was it.

GRASSLEY: I think you probably know, Judge, how important it is. I want to know how important legislative history is to you, when is it appropriate to look to legislative history to interpret a statute and are there some circumstances when more appropriate than other and I'd like to also give your view on legislative history compared to what I heard from Scalia 35 years ago.

BARRETT: Sure. I'm comfortable talking about the use of legislative history because that's a matter of interpretative philosophy. What governs, of course, is the text of the statute. So the legislative history can never supersede the text and should never substitute for the text of the statute.

Justice Scalia, as was well known, railed against the use of legislative history. And I think it was because at the time that Justice Scalia went onto the D.C. circuit before he was on the Supreme Court, the use of legislative history had gotten out of control.

And many courts, you know, were saying things, Justice Scalia in his book quotes this line from a brief, you know, the legislative history being unclear, we turn to that other reliable guide and statutory interpretation, the statute. And that has things backward.

And so I think Justice Scalia really tried to clean that up and say, listen, the priority is the text. When the text answers the question, you don't go to legislative history and there's pragmatic reasons to be careful about doing so.

Legislative history can be long. There's a famous quotation from Judge Leventhal that legislative history is like going to a cocktail party and picking out your friends, can be easy to manipulate because there might be something for everyone. So as a general rule, I don't look to legislative history when I'm deciding cases.

I wouldn't say it would never be relevant. Even Justice Scalia himself said that there could be instances, for instance, for example, if you are trying to determine whether a term

used in a statute, how it was used, if it had a technical meaning or how it was understood, that that might be an appropriate time to consult legislative history. [10:10:14]

Or Justice Scalia himself consulted it when he was trying to determine whether there had been an error in the way the statute was drafted. He looked at legislative history to see whether what seemed unthinkable actually was unthinkable.

GRASSLEY: Now, I would like to go to a specific case. I'd like to go to United States versus Oriarte, which involved the interpretation of Section 403 of the First Step Act, which, you know, I had a big part along with Senator Lee and Senator Durbin in getting that passed in 2018. This is most significant criminal justice legislation in a generation. Our criminal justice system can't just punish and deter. It must also rehabilitate and promote successful reentry into society.

The First Step Act accomplished these goals through prison and sentencing reform. It was well known that the goal of the First Step Act was to make smart and cost-effective changes to the criminal code and to reduce risk of recidivism.

So I want to ask you about your dissent in this case. The issue was whether the sentencing reform provision of the First Step Act applied to a defendant whose sentence had been vacated. Here, the defendant had been convicted but not resentenced at the time of the First Step Act becoming law. The majority opinion cited the plain meaning of the First Step Act and congressional intent in finding that Section 403 would apply to a defendant with a vacated sentence.

Your dissent, as I understand it, argued among other things that congressional intent shouldn't be heavily relied on since, quote, every statute requires a resolution of competing policy interest, end quote. President Trump signed the First Step Act into law only two years ago, so wouldn't re-referencing congressional intent be accessible and relevant?

And then another question, why did you find the majority relying on legislative history unpersuasive?

BARRETT: So I -- we did -- the majority -- it was a very, very difficult case. It was voted on on bunk by our full court. And the quote from my dissent that you're pointing to was actually -- that we had a dispute about what the plain text of the statute required.

And so that portion of my dissent that you just read was saying that I thought that the majority had permitted the policy goals of the act to supersede the text. And in dissent I argued that the text drew the line after someone had been sentenced.

So if someone had already been sentenced on the date of the First Step Act's passage and the relevant language was, you know, if a sentence had already been imposed. I thought with my dissenting colleagues, this was consistent with the approach the Third Circuit had already taken, that that meant if the person had already been through sentencing, you know, this case involved a resentencing. And resentencing can happen years after and so, it -- it didn't seem to -- my dissenting colleagues and I looking at the statute, that the plain language of the text supported the majority's approach to it.

GRASSLEY: Now, I think on my next question on the same case, you may have just partially answered it, but let me go ahead with my lead in and then also a question. Both the majority in your dissent in the case reviewed 403 of the act, under plain reading of the text, as an author and leader in this law's passage, I'd like to discuss how a plain reading of the statute could lead to varying outcomes.

The section in question contemplates when a sentence has been imposed on a defendant, according to the text of the statute and relevant case law, the defendant's sentence, if vacated, creates a clean slate. That means the defendant is placed in the same position as if he had never been sentenced. But your dissent comes to the opposite conclusion on whether a sentence has been imposed.

Note that I agree with you that the laws need to be read and interpreted literally. So my question is this, how could we come to different conclusions?

BARRETT: Well, that language, you know, that it only -- that it did not apply to defendants on whom sentences had already been imposed, my dissenting colleagues and I said well, the language is sentences.

[10:15:08]

It doesn't say, you know, invalid sentences and one could certainly say if asked if someone had been sentenced, yes, he was sentenced but that sentence was later vacated.

And you're right that the majority relied heavily on the clean slate principle, but in my review of the law, this clean slate principle wasn't really present because the Sentencing Reform Act, for example, instructs district courts apply the guidelines at sentencing to apply those that were in effect on the date of the original sentencing. So I thought that the clean slate principle, they were pushing a little too hard on it.

And then, you know, there is certainly unfairness, the First Step Act, its policy is clearly to bring justice to sentencing. But whenever you draw a line on who gets the benefit of the law, this is especially acutely true in the sentencing area, it's very difficult and some people right on other side of the line will not get the benefit of the line wherever you draw it.

So, for example, in this case, Mr. Oriarte had a co-defendant named Sparkman. His case came up right behind -- together. They had been tried together and initially sentenced together. But Oriarte's appeal took longer or resolve or his resentencing took longer because of a lot of delays so there was unfairness there too in the majority's approach, because Oriarte, despite the fact that he was more culpable than Sparkman, wound up with a sentence that was like 15 years less.

GRASSLEY: That's the end of my questioning on that. But let me make a comment before I go to my next question. My position has always been that legislative history can be instructive with respect to the intent of the statute, so judges should not completely disregard it. Certainly, I acknowledge that the legislative branch should be more careful drafting laws, but I also think that judges should pay attention to congressional intent as set forth in history when there might be a dispute about how to interpret the statute.

Justice Ginsburg at her hearing, quote -- and you've discussed this a little bit already, but I think it deserves emphasis, because you're going to go through this business, so maybe not being -- and I know legitimately not being able to comment on a prospective case.

She said, quote, a judge sworn to decide impartiality can offer no forecast, no hints for what would show not only disregard for the specifics of this particular case, it would display disdain for the entire judicial process. Obviously, we all know -- end of quote. We all know that's the Ginsburg standard.

The underlying reason for this rule is that making promises or giving hints on how a judge would rule in a case undermines the very independence of our system but you're going to be asked about your personal views as you just have been on various topics and how you might correctly decide.

Of course, you know the judicial nominees should never promise their future votes in -- on the bench in exchange for the president's nomination or a senator's support. You'd be showing the opposite of independence.

So, my question, so I ask you, do you agree with the Ginsburg standard that it goes to the question of judicial branch's independence for legislative history? And all you've got to do is say, yes, because I've heard you talk about this.

BARRETT: Yes, I agree, the Ginsburg rule reinforces judicial independence.

GRASSLEY: Yes. Now, here is something that a lot of people's suspicion, so I want to ask you, have you made any promises or guarantees to anyone about how you might rule on a case or issue that might come before you if you're confirmed to the Supreme Court?

BARRETT: I want to be very, very clear about this, Senator Grassley. The answer is no. And I submitted a questionnaire to this committee in which I said, no, no one ever talked about any case with me, no one on the executive branch side of it. And that's one reason you ask that question, I think, as a committee, is that you don't -- you want to know that no nominee has made any pre-commitments.

And so, just as I didn't make any pre-commitments and was not asked to make any commitments on the executive branch side, I can't make any pre-commitments to this body either. It would be inconsistent with judicial independence.

GRASSLEY: Now, I know the answer to my last question. And, Mr. Chairman, I'm going to reserve the rest of my time. The Democrats claim that you're being put on the Supreme Court so you can vote to repeal the Affordable Care Act.

[10:20:02]

Is that your agenda? If confirmed, is your goal repealing the Affordable Care Act? Have you committed to the president or anyone else that you will vote to repeal the Affordable Care Act if confirmed to the court?

BARRETT: Absolutely not. I was never asked. And if I had been, that would have been a short conversation.

GRASSLEY: I think your record shows that you'll be a faithful judge that takes each case seriously and approach each case in an unbiased way rather than with the policy agenda in mind.

Is it fair -- we can reserve our time?

SEN. LINDSEY GRAHAM (R-SC): Absolutely.

GRASSLEY: Okay.

GRAHAM: Senator Leahy?

UNIDENTIFIED FEMALE: Letters for the record?

GRAHAM: I'll introduce the letters by Senator Feinstein will be introduced into the record without objection.

Senator Leahy, are you with us?

SEN. PATRICK LEAHY (D-VT): I think I am. Do you hear me there?

GRAHAM: Yes, sir. Let's see if we can get you up on the screen here. There you go. The floor is yours.

LEAHY: Thank you very much.

And, Judge, I was watching as you introduced your family. Thank you for doing that. Your family is very important to you, as they should be. My wife and I have been married for 58 years and our children and our grandchildren are the most important things in our life. And I was pleased to see you introduce the family.

Now, as a senator, of course, another important part of my life is referring to and representing the people of Vermont. And let me talk to you about some of the things I've been hearing from Vermonters. You have to understand, in Vermont, Vermonters just walk up to the grocery store, coming out of church, or whatever, and perfectly happy to express their views. And they are concerned about what the Republicans' Affordable Care Act lawsuit on November 10th would mean for them.

Do you know how many Americans have obtained insurance through the Affordable Care Act?

BARRETT: I do not.

LEAHY: It's more than 20 million. And do you know how many children under the age of 26 are able to stay on their parents' insurance because of the Affordable Care Act?

BARRETT: I do not.

LEAHY: It's 2.3 million. And do you know how many Americans are covered under the Affordable Care Act's Medicaid expansion?

BARRETT: I do not.

LEAHY: It's a little more than 15 million.

And I look at that, because I look at the people who called me from Vermont. I think of Alex Johnson. She's a single mother, she's a childhood cancer survivor. She works as a nanny in South Burlington, Vermont. She relies on Medicaid for her doctors' visits, her blood drawings, her other testing, all that to make sure her leukemia stays in remission. She tells me she stays awake at night worrying about losing Medicaid.

Now, if the Republicans are successful in what they're trying to do on November 10th, then Alex and actually 60,600 other Vermonters enrolled in Medicaid expansion are going to be left behind. And you contract COVID-19, that's seen as a pre-existing condition.

Do you know approximately how many million Americans have tested positive for the coronavirus and survived?

BARRETT: I do not.

LEAHY: It's more than 7,700,000. Those are people now considered to have a pre-existing condition.

And one of the most common pre-existing conditions is diabetes. The CDC estimated 34 million Americans, that's about one in ten Americans, have diabetes. This shows that the ACA's Medicaid expansion is the single most important factor for expanding access to affordable insulin.

Leslie, a Vermonter, diagnosed with late onset type1 diabetes at the age of 25. For years, she is dependent on Medicaid to keep her alive and out of bankruptcy. Now, President Trump recently said he made insulin as cheap as water. I wish he had told the truth to that. We all knew it's not.

[10:25:00]

Leslie now has insurance to pay for insulin.

And without this insurance, do you know how much because, unlike what the president says, insulin is not as cheap as water, do you have an idea how much Leslie's out-of-pocket expenses her insulin would increase?

BARRETT: No, I do not.

LEAHY: And I wouldn't expect you to. There's no reason why you should. But Leslie's cost would more than triple. It would go up to $11,215 a year. That's in a state where the per capita income is $33,000.

So I'm not suggesting that you're callous or indifferent to the consequences if the Affordable Care Act is overturned. You know these are real cases. And I think you're a sympathetic person. But I do believe that the president selected you because he wanted somebody with your philosophy and he had a reason for it.

Now, some are going to pretend that it's a mystery, and that's what some of my colleagues have. What would Justice Barrett would do when the Supreme Court takes up the latest attack on the ACA? President Trump has made it so crystal clear. He has promised that his nominees would overturn the ACA. It's even in the official Republican Party platform. And when he said of the case to be argued next month, he said we want to terminate health care under Obamacare, the ACA. And within hours of nominating you, he again repeated his hope that the ACA would be overturned.

I know -- I mentioned my friend, the chairman, Senator Graham, knows the president as well as anyone here, he goes golfing with him, he spends a lot of time with him, and I think Chairman Graham knows the president would not repeatedly promise the American people that his judges would overturn the ACA if he didn't mean it. I think Senator Graham would have to agree that the president is confident Judge Barrett would side with him on November 10th. That's not necessarily a question of either one of you, but, of course, the chairman has an opportunity to respond on his time if he wants.

But I think we know the president is confident. There has not been an issue in the last decade that's animated Republicans in Congress more than their zeal to overturn the Affordable Care Act. In fact, the other day, I was surprised by the answer, do you know, Judge Barrett, that Republicans in Congress have voted to repeal or gut the ACA more than 70 times in the last ten years? And when they failed, they turned to the court. Do you know how many Republicans on this committee have joined amicus briefs urging, of course, to overturn the ACA in NFIB versus Sebelius and King versus Orwell?

BARRETT: How many Republicans had voted? Was that the question?

LEAHY: No. Do you know how many Republicans in this committee have joined in amicus briefs urging the courts to overturn the ACA?

BARRETT: I don't. I'm having a little bit of trouble hearing, Senator Leahy. Is there a way for the volume to be turned up?

GRAHAM: Yes, ma'am.

LEAHY: I'm sorry for that.

GRAHAM: It's on our end, Senator Leahy, that's okay. And repeat the question and --

LEAHY: Well, how is it coming through now?

GRAHAM: Very good.

BARRETT: Very well. Thank you.

LEAHY: As you know, I stayed away simply because I don't think it is safe for you or anybody else to be there.

But my question is, do you know how many times Republicans on the committee you're sitting before have joined amicus briefs urging courts to overturn the Affordable Care Act?

BARRETT: I do not, no.

LEAHY: It's at least nine, by my count. In fact, they've already weighed in the on the November 10 case. Two weeks ago, the Senate voted on whether to side with President Trump in Texas versus California.

[10:30:04]