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Trump's Supreme Court Pick, Amy Coney Barrett, Faces Senators' Questions; Sen. Leahy: Would You Commit To Recuse Yourself From Any Dispute That Arises Out of the 2020 Presidential Election? Aired 10:30-11a ET

Aired October 13, 2020 - 10:30   ET

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

[10:30:00]

LEAHY: Two weeks ago, the Senate voted on whether to side with President Trump in Texas v. California. 11 of the 12 senators on this committee sided with the Trump administration and asked to kill the ACA. Now I understand that you will not share your views on Texas v. California. I know you look at judicial candidate 386 and you're concerned that commenting may give future (inaudible) appear before you an indication of which way you'll go. Is that correct?

BARRETT: Yes, that is correct.

LEAHY: OK. My concern -- my concern is that you've already given us every indication. Every time you've weighed in, it hasn't even been close. You repeatedly disagree with Chief Justice Roberts for what you've said you clearly read the statute is unconstitutional. The president has been very clear he expects you to side with him. And let me tell you another area he'll expect you to side with him. He expects you to side with him in an election dispute. He says he needs a ninth justice because he has -- he's counting on the court to look at the ballots, and he says the election will be rigged. The recusal statute, 28 USC 455, requires recusal where impartiality might reasonably be questioned.

Now, when the president declares he needs this nominee to secure his reelection and then the nominee is ran through the Senate in record time during the middle of an election, some are going to question that nominee's impartiality. Would you -- to protect confidence in both you and the court, would you commit to recuse yourself from any dispute that arises out of the 2020 presidential election?

BARRETT: Senator Leahy, I want to begin by making two very important points, and they have to do with the ACA and with any election dispute that may or may not arise. I have had no conversation with the president or any of this staff on how I might rule in that case. It would be a gross violation of judicial independence for me to make any such commitment or for me to be asked about that case and how I would rule. I also think it would be a complete violation of the independence of the judiciary for anyone to put a justice on the court as a means of obtaining a particular result, and that's why as I was mentioning I think to Senator Grassley that the questionnaire that I filled out for this committee makes clear that I have made no pre- commitments to anyone about how I would decide a case. That's out of respect for Article III and its designation of the judiciary as a coequal and independent branch of government. On the recusal question...

LEAHY: Well, I must say that you gave a similar answer when I talked to you and Mr. Supaione (ph). I had a question, of course, because one of the numbers of our -- in the Judiciary Committee said they would not support you unless we had a commitment that you would vote that way?

BARRETT: Vote on the election?

LEAHY: On another case, Roe v. Wade. And I understand what you're saying is not (inaudible). I remember this committee said you have not made that commitment to anybody. Is that correct?

BARRETT: Senator Leahy, let me be clear I have made no commitment to anyone, not in this Senate, not over at the White House about how I would decide any case.

LEAHY: Well, that -- and the reason I ask is we also have a question of appearance. Now Judge Joan Larsen of the Sixth Circuit said this to you during your 2017 hearing. She asked confronted with this issue as a judge on the Michigan Supreme Court in 2016. Then President Elect Trump challenged a ballot recount. Judge Larsen was on the short list for the Supreme Court at the time. She found that being on the short list was a conflict and required her recusal. You are absolutely -- you are also on the short list, and then you were actually chosen.

[10:35:00]

Now he's not the president elect. He's the president. And then the president makes his similar thing as he did and Judge Larsen looked at (ph). He's counting on you to deliver him (ph) in the election. Judge Larsen said that was a conflict for her, OK, and would have to recuse. You do not find his comments a conflict to you. Is that correct?

BARRETT: Senator Leahy, I'm not familiar with Judge Larsen's decision, but she clearly made it once it was presented to her in the context of an actual case where she had to waive her obligations under 28 USC 455. If presented to me, I would, like Judge -- like Judge Larsen, apply that statute. And I recently read a description by Justice Ginsburg of the process that Supreme Court justices go through in deciding whether to recuse, and it involves not only reading the statute, looking at the precedent, consulting counsel, if -- if -- if necessary, but the crucial last step is that while it is always the decision of an individual justice, it always happens after consultation with the full court. So I can't offer an opinion on recusal without short-circuiting that entire process.

LEAHY: Well, I think that what I worry about, and I've said over and over again, that if the courts are politicized, from the Supreme Court down through other courts, and I've (inaudible) cases in (inaudible) our -- our federal courts, I've always assumed the judges are totally impartial, no matter what president had nominated them. But this president has not been subtle, and he expects his nominee to side with him in an election dispute. I'm thinking of the credibility of our federal courts, and I would hope you would at least consider that. The president said he needs a ninth justice because he's counting on the court to look at the ballots in case he loses because that would -- if he lost, and that the Democrats have rigged the election.

The recusal statute, as you know as well as anyone in 28 USC 455 requires a justice recuse herself in any proceeding in which impartiality might reasonably be questioned. Now, whether you like it or not, and I suspect you probably do not, the president's placed both you and the Supreme Court in the worst of positions.

And so let me ask you a -- a different type of question. I assume you agree with me that it's critical for Americans to have confidence in the Supreme Court. Is that true?

BARRETT: That is true, and I agree with your earlier statement that the courts should not be politicized.

LEAHY: Thank you. And I voted for an awful lot of Republican and -- and Democratic-nominated justices, as I did, of course, for Chief Justice Roberts, because I wanted to keep the Supreme Court and other courts out of politics. But when the president repeatedly declares his -- he needs his nominee as a way of securing his reelection, and that nominee has been rammed through the Senate in the -- in the middle of that election, well, you can see where the nominee's impartiality might be questioned. So my -- my request is in that -- in protecting confidence in both you and the court, are you able to commit to recuse yourself from disputes arise out of the 2020 presidential election?

BARRETT: Senator Leahy, I commit to you to fully and faithfully applying the law of recusal, and part of that law is to consider any appearance questions, and I will apply the factors that other justices have before me in determining whether the circumstances require my recusal or not. But I can't offer a legal conclusion right now about the outcome of the decision I would reach.

LEAHY: Which is sort of boilerplate response on -- on recusal. So let me ask you another question. You laid out the case for blocking President Obama's Supreme Court nominee, Judge Merrick Garland, for 10 months during an election year. You have (inaudible) prior that Justice Scalia was the staunchest conservative on the court, and Justice Scalia and I were personal friends.

[10:40:00]

I voted for him, and I agree with you on that. You claim that the moderate and eminently-qualified Judge Garland would dramatically flip the balance of the court. You said it was not a quick (ph) lateral move, but that's your -- your quote. It was not a lateral move.

So now you're -- you're nominated to replace Justice Ginsburg, perhaps the staunchest champion for civil rights of the court. You claim that the philosophy of Justice Scalia is your own. Of course, he was the opposite side of Justice Ginsburg in countless civil rights cases. Would you say that replacing Justice Ginsburg by yourself is not a lateral move, like you encouraged when you supported the blocking of President Obama's nominee, Judge Garland?

BARRETT: Senator Leahy, I want to be very clear. I think that's not quite what I said in the interview.

It was an interview that I gave shortly after Justice Scalia's death, and at that time both sides of the aisle were arguing that precedent supported their decision, and I said while I'd not done the research myself, my understanding of this -- of the statistics was that there -- neither side could claim precedent; that this was a decision that was the political branch's to make. And I didn't say which way they should go; I simply said it was the Senate's call. I didn't advocate or publicly support the blockade of Justice -- Judge Garland's nomination, as you're suggesting.

LEAHY: You -- that's not what I'm suggesting. You said it was a lateral. It would not be a lateral move.

BARRETT: I -- what I was suggesting is that it was unsurprising that there was resistance as a political matter to that nomination because it would change the balance of the court. That's (inaudible)...

LEAHY: Well, I -- I -- I was surprised -- I was surprised there was resistance and surprised there's so many, at that time, Republican members of the Judiciary Committee who would say publicly before the vacancy that they thought Merrick Garland would be a good person to have on the court, and somebody who could appeal to both conservatives, liberals and moderates. But (inaudible)...

BARRETT: I have full respect for Judge Garland.

LEAHY: I beg your pardon?

BARRETT: I'm sorry. I missed the first part. Are they right to say -- could you repeat the question?

LEAHY: No, it's not a question. I was just saying that we had many members of our committee, a number of Republicans who, prior to the vacancy, had been saying Merrick Garland would be a good person for President Obama to nominate because he -- he could appeal to moderates, conservatives and liberals. And then their -- of course, their response was, "Well, we can't have a -- we can't have a nominee confirmed by one party that's in control of the Senate and nominated by the president of another party." (Inaudible) I pointed out, I was here when Democrats controlled the Senate and President Reagan nominated Anthony Kennedy, and in an election year, Democrats confirmed him.

But let me go to another area. A three judge panel of the 7th Circuit has struck down three provisions of an Indiana law restricting reproductive rights. The state of Indiana requested en banc review of just one of the provisions, the fetal tissue disposition provision.

The question was whether to review the case, leaving intact the panel decision to strike down the law. You joined Judge Easterbrook in his dissent but then the dissent went out of its way to address a separate provision not before the court, the so-called reason ban, that your dissent called a eugenics statute.

Judge Barrett, the issue before your court was a narrow one. Why didn't you limit your dissent to the one issue the state of Indiana was asking you to review?

[10:45:00]

BARRETT: So we dissenters from that denial of hearing en banc -- first of all, dissented, as you say, on the fetal remains disposition portion, which the Supreme Court wound up summarily reversing the panel. On the eugenics portion of the bill, it is true that the state of Indiana did not seek en banc rehearing on that but we had many other states enter the case as amici, urging us to take that claim up, and what Judge Easterbrook's dissent did is explain why he actually thought it was an open question but one best left to the Supreme Court, and we didn't reach any conclusion with respect to it.

LEAHY: Well, in -- in your -- whatever position you took would not have changed the final decision of the -- of the court. Now, in 2006, you -- you signed an open letter that is published in the South Bend Tribune.

You -- on one side, the advertisement describes the legacy of Roe v. Wade as barbaric. On the other side, which you signed, it's stated that you oppose abortion and the ban, defend the right to life from fertilization to natural death -- and I have certainly voted for some judges who take that position -- (inaudible) not mentioned in the letter, the organization that led the effort believes that in vitro fertilization, or IVF, is equivalent to manslaughter and should be prosecuted.

Do you agree with them that IVF is tantamount to manslaughter?

BARRETT: Senator, the statement that I signed, as you said, simply said "we" -- I signed it on the way out of church, it was consistent with the views of my church and it simply said "we support the right to life, from conception to natural death." It took no position on IVF.

LEAHY: No, I -- I -- I understand that and I -- as I said, I voted for judges who take the same position you do, but I'm asking do you agree with the St. Joseph County Right to Life that sponsored the ad, that IVF is tantamount to manslaughter?

BARRETT: Well, Senator, I signed the statement that you and I have just discussed, and you're right that the St. Joseph County Right to Life ran an ad on the next page but I didn't -- I don't even think the IVF view that you're expressing was on that page, but regardless, I've never expressed a view on it, and for the reasons that I've already stated, I can't take policy positions or express my personal views before the committee...

LEAHY: OK.

BARRETT: ... because my personal views don't have anything to do with how I would decide cases and I don't want anybody to be unclear about that.

LEAHY: Well, let me talk about some of the positions you have taken. Before you became a judge, you were paid by the Alliance Defending Freedom, ADF, for five lectures. You gave them on originalism at the Blackstone Legal Fellowship.

Now, I recall some -- being asked about some of their controversies. Were you aware of ADF's decades long efforts to recriminalize homosexuality?

BARRETT: I am not aware of those efforts, no.

LEAHY: OK. One of the reading materials they had for the program that you lectured to five -- several times -- (inaudible). In fact, they had filed a brief on Lawrence v. Texas, supporting -- in support of state laws punishing private homosexual activity. They celebrated when India restored a law punishing sodomy to 10 years in prison.

Now, I don't -- whether you believe that being gay is right or wrong is irrelevant to me but my concern is what you -- you work with an organization working to criminalize people for loving a person that they are in love with. So that -- that's what -- that's what worried me.

BARRETT: Did -- did you -- I wasn't sure if you wanted me to answer that. You know, my...

(CROSSTALK)

LEAHY: ... no, go ahead.

[10:50:00]

BARRETT: My experience with the Blackstone program, which I spoke, was a wonderful one. It gathers, you know, best and brightest Christian lawsuits from around -- law students from around the country. And as you said, I gave a one hour lecture on originalism.

I didn't read all of the material that the students were given to read. That had nothing to do with my lecture. I enjoyed teaching the students about what my speciality was, which is constitutional law, and nothing about any of my interactions with anyone involved in the Blackstone program were ever indicative of any kind of discrimination on the basis of anything.

LEAHY: Well, as you know, same-sex marriage, for example -- and Senator Feinstein mentioned this at the beginning -- is legal -- certainly legal in my state, it has been for some time. Do you feel that should be a crime?

BARRETT: Same-sex marriage?

LEAHY: Yes.

BARRETT: Obergefell clearly says that there is a constitutional right to same-sex marriage. LEAHY: And do you agree with that stare decisis?

BARRETT: Well, Senator, for the reasons that I've already said, I'm not going to, as Justice Kagan put it, give a thumbs up or a thumbs down to any particular precedent. It's precedent of the Supreme Court that gives same-sex couples the right to marry.

LEAHY: Well, you mentioned Justice Kagan. She once wrote an opinion "It's not enough that five justices believe a precedent is wrong. Reversing course demands a special justification over and above the belief that the precedent was wrong that (ph) decided it." Do you agree with that?

BARRETT: I do agree with that. The doctrine of stare decisis itself requires that.

LEAHY: Thank you. Having relied on stare decisis in many of my arguments before courts of appeals, I thank you for your answer.

Chief Justice Roberts...

GRAHAM: Senator Leahy, I don't mean to interrupt. I know you don't have a clock in front of you, but we're about a little more than a minute over, so if you...

(CROSSTALK)

LEAHY: I'm sorry, Mr. Chairman, I do not have a clock in front of me, but...

GRAHAM: No I understand, I totally understand.

LEAHY: I appreciate it and I look forward to the next round of questioning.

GRAHAM: Thank you, we'll make sure that happens.

Very briefly before I go to Senator Cornyn, Senator Leahy mentioned my time with the president. I think probably all of us on this side were consulted by the president regarding how to fill the opening. He gave me a list of -- a small list of names, all women, you were on it, I was enthusiastic about everybody and very enthusiastic about your nomination by the president.

Play a lot of golf with the president I guess. I've enjoyed it. We talk about a lot on the golf course, some policy, killing Soleimani, we talked about that, that was an interesting discussion. I promise you I've never talked about severability (ph) with the president.

Senator Cornyn?

(LAUGHTER)

(UNKNOWN): Speak for yourself.

(LAUGHTER)

CORNYN: Good morning, Your Honor.

BARRETT: Good morning, Senator Cornyn.

CORNYN: You know, most of us have multiple notebooks and notes and books and things like that in front of us. Can you hold up what you've been referring to in answering our questions? Is there anything on it?

BARRETT: Letterhead that says "United States Senate."

CORNYN: That's impressive.

Well, Judge, the best I can understand the objections to your nomination are not to your qualifications, your experience or training, but it's that you have -- or you will -- violate your oath of office. I find that terribly insulting. They suggest that you can't be unbiased in deciding a case you haven't even participated in yet. I find that insulting as well.

You know, almost as -- maybe almost as pernicious as attacking somebody for their faith and suggesting that that disqualifies them from holding public office, is the attack that's being made on judicial independence, something that Chief Justice Rehnquist, among others, observed the crown jewels of the American Constitution and the American system.

But I want to just take a little walk down memory lane here. You know, there are a lot of people who guessed how judges would actually rule on cases, and almost always they've been spectacularly wrong. I was struck by just a couple.

[10:55:00]

Harry Truman said, "Whenever you put a man" -- and that -- he's talking about a man, but man or woman -- "on the Supreme Court, he ceases to be your friend." He said some more colorful things too.

But Theodore Roosevelt said about Oliver Wendell Holmes Jr., he said, "I could carve out -- out of a banana, a judge with more backbone than that."

And as I think about people like Harry Blackmun, nominated by Richard Nixon, who wrote Roe v. Wade, as I think about Warren Burger -- you know, they were called the Minnesota Twins, and obviously over time they became sort of polar opposites on the court.

I think about the attacks on Neil Gorsuch for his unwillingness to make a prior commitment on LGBT issues. He wrote the Bostock case, extending Title VII of the Civil Rights Act to gay or transgender individuals. Obviously, those predictions were wrong.

And then since we're talking about the ACA -- it's the ACA v. ACB, I guess -- Chief Justice Roberts was the one who wrote the opinion upholding the Affordable Care Act, as you know. So I would just say that all of these predictions about how judges under our independent judiciary will make decisions are just pure speculation. But I think they're worse than speculation, I think they're propaganda in order to try to make a political point.

So, Judge, you're not willing to make a deal?

BARRETT: No, Senator Cornyn, I'm not willing to make a deal. Not with the committee, not with the president, not with anyone. I'm independent.

CORNYN: I just would like to hear maybe some of your thoughts on -- in the Obergefell case, which established, as you said, a constitutional right to same-sex marriage, part of that decision struck down the Defense of Marriage Act, correct?

BARRETT: Yes, I believe so.

CORNYN: That was a bill that Joe Biden voted for?

BARRETT: I don't know about that.

CORNYN: Well, I do.

BARRETT: OK.

CORNYN: Joe Biden voted for it, Pat Leahy and Bill Clinton signed it into law. Can you just -- I'm not asking you to get into the details, but just sort of differentiate for everybody listening, what the approach of a legislator is in voting for a piece of legislation as opposed to the role of a judge interpreting the constitutionality of a piece of legislation? Are they the same or are they different?

BARRETT: They're quite different. A judge isn't expressing a policy view. You know, I tell my students in Constitutional Law that newspapers do courts a disservice when, you know, they say things like, you know, "Court favors same-sex marriage" or -- you know, just giving the headline without showing any of the reasoning that goes into it.

Because courts are not just expressing a policy preference, they're digging in, they're looking at the precedent, they're looking at the Constitution and even when the results cuts against policy preferences, judges are obliged to follow them. I suspect that this body doesn't cast votes that conflict with their policy preferences.

CORNYN: Well, that's right. And the difference between us and you is, you don't run for election.

BARRETT: That's right.

CORNYN: You don't run on a platform. You don't say, "If I'm confirmed, I'm going to do this or that." You don't do that, do you?

BARRETT: It would be wholly, wildly inappropriate for me to do so. CORNYN: Well, your mentor, Justice Scalia, said something back in 2005 that I find intriguing but reassuring. He said, "If you're going to be a good and faithful judge, you have to resign yourself to the fact that you're not always going to like the conclusions you reach. If you like them all the time, you're probably doing something wrong."

Do you agree with that? And if you do, would you explain what you mean?

BARRETT: I do agree with that. And that, you know, has been by experience on the 7th Circuit so far.

It's your job to pass the statues. It's your job to choose policy. And then, it's my job to interpret those laws and apply them to facts of particular cases. And they don't always lead me to results that I would reach if I were, you know, queen of the world and I could say you win, you lose or this is how I want it to be.

[11:00:00]