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Trump's Supreme Court Pick Faces Senator's Questions; Barrett: "No One Ever Talked About any Case with Me" Before Nomination; Barrett Won't Say if She Would Recuse from Obamacare Decision; Supreme Court Nominee Faces Questions on Affordable Care Act; Barrett Asked About George Floyd Case; Supreme Court Nominee Faces Questions on Gun Rights. Aired 11-11:30a ET.

Aired October 13, 2020 - 11:00   ET

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

AMY CONEY BARRETT, NOMINATED TO BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES: 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]

Because I just don't have the power by fiat to impose my policy preferences or choose the result I prefer.

That's just not my role. I've got to go with what you guys have chosen.

SEN. JOHN CORNYN (R-TX): Well, why in the world would the American people surrender their right to govern themselves through their elected representatives and through the Constitution to nine people who don't even run for election and who serve for life? Why in the world would -- should the American people do that?

BARRETT: Well, I think part of the rationale for courts adhering to the rule of law and for judges taking great care to avoid imposing their policy preferences is that it's inconsistent with democracy.

Nobody wants to live in accord with the law of Amy -- I assure you, my children don't even want to do that. So I can't, as a judge, get up on the bench and say you're going to live by my policy preferences because I have life tenure and you can't kick me out if you don't like them.

CORNYN: Well, thankfully, under the Constitution, even if the Supreme Court strikes down a statute, Congress can come back and revisit that topic and do so in a way that doesn't violate the Constitution as determined by the court. And ultimately -- it doesn't happen very often in our history, but ultimately we can amend the Constitution itself. Correct?

BARRETT: That is correct.

CORNYN: So the basis of legitimacy of governmental power is consent of the governed. Do you agree with that?

BARRETT: I do agree with that.

CORNYN: Not what nine people in black robes -- the high nine on the Potomac, I think they're sometimes called -- the decisions they make, those are -- that's not the final word in our form of government. Correct?

BARRETT: We are a law -- a government of laws, not of men.

CORNYN: Well, Judge Barrett, I'm almost through but I can't pass up the opportunity to ask you a question about the Establishment Clause. I did with Justice Kavanaugh and Justice Gorsuch as well. It's borne out of my frustration.

One of the couple of times I had a chance as attorney general of Texas to argue before the Supreme Court, I argued in a case called Santa Fe Independent School District v. Doe.

This was about a commonplace practice where, before football games in Texas, students would volunteer to offer an invocation or an inspirational poem or saying or something like that. The ACLU sued the school district. And obviously, it made its way all the way -- all the way to the Supreme Court.

And I'm not going to ask your opinion on the outcome of the case. But what troubles me the most -- what troubled me the most about that experience is when the Supreme Court struck down or held that practice unconstitutional and in violation of the Establishment Clause.

Chief Justice Rehnquist said the Constitution requires neutrality toward religion.

But the court's approach speaks of hostility toward religion. Could you just talk a little bit about the Establishment Clause generally with -- not in regard to any particular set of facts but, sort of, what the courts over time have tried to do to -- to enforce the mandate of the Constitution?

BARRETT: Well, Senator Cornyn, when I interviewed for my job with Justice Scalia, he asked what area of the court's precedent that I thought, you know, needed to be better organized or that sort of thing.

And off-the-cuff I said, well, gosh, the First Amendment. And he said, well, what do you mean?

And I fell down a rabbit hole of trying to explain without success -- because it is a very complicated area of the law -- how one might see one's way through the thicket of balancing the Establishment Clause against the Free Exercise Clause. It's a notoriously different -- difficult area of the law. And to that, you know, there is tension in the court's cases -- and I'm giving you no better an answer, I assure you, than I did to Justice Scalia that day -- it's been something that the court has struggled with, you know, for decades to try to come to a sensible way to apply both of those clauses.

CORNYN: Well, I wish you well.

BARRETT: Thank you, senator.

CORNYN: Mr. Chairman, I'm going to reserve the rest of my time. Thank you.

SEN. LINDSEY GRAHAM (R-SC): Thank you, Senator Cornyn.

For planning purposes, if it's OK with the committee, we'll have Senator Durbin and Senator Lee. We'll break for about a half hour for lunch. Then come back with Senator Whitehouse. Is that OK?

Senator Durbin?

Are you OK with that? Do you need a break?

BARRETT: No, that's fine.

GRAHAM: OK.

SEN. RICHARD DURBIN (D-IL): Thank you, Mr. Chairman.

And thank you, Judge Barrett and your family, for being here with us today for this marathon of--

(LAUGHTER)

-- questioning.

[11:05:05]

BARRETT: Thank you, Senator Durbin.

DURBIN: Appreciate it. I would like to respond to two of my colleagues quickly before I ask a few questions of you.

How -- who came up with this notion -- this insulting notion that you might violate your oath? Where could have this idea have come from? Could it have come from the White House?

Could it have come from the president's tweets of what he expects a Supreme Court nominee to do politically for him? That's where it comes from. That's where it originated.

And you have said very clearly today, without equivocation, you are not going to be influenced by President Trump's importuning or the importuning of this committee or anyone else, which is what we expect you to say. But this notion that this whole idea of you're being used for political purposes as a Democratic creation, read the tweets and you have plenty to work with. Read the tweets.

The second thing I would like to say is I'm not going to spend a lot of time defending the Affordable Care Act -- although I think it's the most important single vote I've cast as a member of Congress, period -- but I will say that when the chairman opened up on it and said what he did, I was puzzled. Three states get 35 percent of the money, how can that possibly be true?

Well, it turns out because those states decided to extend Medicaid coverage to the people who lived in the states and his did not. And as a consequence, fewer people in South Carolina have the protection of health insurance -- and those that do are paying for their services and those that don't are not -- which imperils hospitals and others in the process.

So I would say there is an explanation as to why some states are spending more. And incidentally, there is a Republican governor of your state, Indiana, by the name of Mike Pence who decided to break with other Republican governors and extend Medicaid coverage under the Affordable Care Act. I think it was the right thing to do for Indiana, as it was for Illinois. But that's part of the reasoning.

Let me just say that the Affordable Care Act really is a part of this, as you can tell, on the Democratic side. We really believe the Supreme Court's consideration of that case is going -- could literally change America for millions of people.

I have with me today another group I'd like you to at least be aware of because they're pretty amazing people. But this is the Williams family. They live in Naperville not too far from Chicago.

BARRETT: Yes.

DURBIN: Cathy (ph) and Les (ph) Williams have four sons from left to right; Matt (ph), Joey (ph), Tommy (ph) and Mikey (ph). Matt (ph) who is 27 was diagnosed with Type 1 Diabetes when he was 13, the other three Williams' boys were all born with Cystic Fibrosis.

Joey (ph) is 24, Mikey (ph) is 21. Sadly Mikey's (ph) twin Tommy (ph), after this picture was taken, passed away in January 2019 from complications. This is the last photo that was ever taken of their full family.

Here's what they wrote me, "We can not imagine having to go through losing another child. People with Cystic Fibrosis require daily medication, regular doctor visits, access to high quality specialized care. That means people with pre-existing conditions like Cystic Fibrosis can not be discriminated against.

The ACA's protections ensure a ban on annual on lifetime caps and enforce the requirement that ensures cover essential health benefits such as hospitalization and mental health services. People with CF and other pre-existing conditions needs adequate

affordable health care to live longer, healthier lives." That's why we keep bringing this up. Real people that we run into all the time.

There's a chart here I'm not sure (inaudible) while we're at it. On the republican side there's some obviously controversy as to whether we're right or wrong. There are an awful lot of people in each of the states represented by our republican senators who have their health care and literally in some cases their lives hanging in the balance.

South Carolina, 242,000 people would lose their insurance coverage is the Affordable Care Act were eliminated. Two million living in that state are pre-existing conditions. You can imagine the list goes on. Thank you.

Here's what it comes down to, you have been unequivocal in being critical in decisions both in NFIB Sebelius and the King Burwell. And we naturally draw the conclusion there's going to be a third strike when it comes to Texas and California.

You said it won't affect pre-existing conditions if the petitioners have their way there will not be an Affordable Care Act to protect pre-existing conditions on the severability question.

So give us an insight of how you can be so unequivocal in opposing the majority decisions in NFIB Sebelius and in King Burwell but have an open mind when it comes to the future of the Affordable Care Act?

[11:10:01]

BARRETT: Sure. Thank you for that question, Senator Durbin, because it gives me an opportunity to make my position clear. When I wrote and this was as a law professor about those decisions I did critique the statutory interpretation of the majority opinion.

And, as I mentioned before, my description of them was consistent with the way that Chief Justice Roberts described the statutory question. But I think that your concern is that because I critiqued the statutory reasoning that I'm hostile to the ACA and that because I'm hostile to the ACA that I would decide a case a particular way.

And I assure you that I am not. I am not hostile to the ACA, I'm not hostile to any statute that you have. And the cases on which I commented and we can talk at another time, I guess, about the context, the distinctions between academic writing and judicial decision making.

But those were on an entirely different issues. So to assume that because the critiqued the interpretation of the mandate or the phrase established by a state means that on the entirely different legal question of severability I would reach a particular results just assumes that I'm hostile, and that's not the case. I apply the law. I follow the law. You make the policy.

DURBIN: So let's talk about that for a moment from a different issue perspective. Bear with me for a couple questions. Have you seen the George Floyd video?

BARRETT: I have.

DURBIN: What impact did it have on you?

BARRETT: Senator, as you might imagine given that I have two black children, that was very, very personal for my family. Jesse was with the boys on a camping trip out in South Dakota, so I was there and my 17-year-old daughter, Vivian, who's adopted from Haiti, all of this was erupting.

It was very difficult for her. We wept together in my room, and then it was also difficult for my daughter, Juliet, who's 10. I had to try to explain some of this to them.

I mean, my children to this point in their lives have had the benefit of growing up in a cocoon where they have not yet experienced hatred or violence, and for Vivian, you know, to understand that there would be a risk to her brother or a son she might have one day of that kind of brutality has been an ongoing conversation. It's a difficult for one for us like it is for Americans all over the country.

DURBIN: And so, I'd like to ask you as an originalist but obviously has a passion for history I can't imagine you could separate the two. To reflect on the history of this country, where are we today when it comes to the issue of race. Some argue it's fine. Everything's fine and you don't even have to teach children about the history of slavery or discrimination.

Others say there's an implicit bias in so many aspects of American life that we have to be very candid about and address. Others go further and say, no. It's systemic racism. It's built into America, and we have to be much more pointed in our addressing. How do you feel?

BARRETT: So I think it is an entirely uncontroversial and obvious statement given as we just talked about the George Floyd video that racism persists in our country. As to putting my finger on the nature of the problem, you know, whether as you say it's just outright or systemic racism or how to tackle the issue of making it better, those things, you know, are policy questions.

They're hotly contested policy questions that have been in the news and discussed all summer. So while as I did share my personal experience, I'm very, you know, happy to discuss the reaction our family had to the George Floyd video giving broader statements or making, you know, broader diagnoses about the problem of racism is kind of beyond what I'm capable of doing as a judge.

DURBIN: Well I would doubt that -- just don't believe you can be as passionate about originalism and the history behind language that we've had for decades if not centuries without having some thought about where we stand today, but I'm not going to pressure on that.

I'm going to take you to a case which I have read and reread, Kanter versus Barr. You know the case well because it's already been referred to. And it clearly is a case where you had your day in court.

[11:15:00]

You wrote the sole dissent, a 64-page case. 37 pages were your dissent, so you gave to the court I assume a pretty full accounting of your thoughts on the subject, and here's the way I understand the case.

A fellow named -- a fellow named Rickey Kanter from Mequon, Wisconsin, invested in some pads to put in a shoe to be sold to particularly older Americans under Medicare to relieve foot pain.

And he designed them and submitted them to Medicare and didn't get the approval that he was looking for, but instead sold them and represented to many customers that they had been approved by Medicare. And so, he was charged with fraud.

Now, this wasn't a matter of a casual misapplication of the law. When it was all said and done, Rickey Kanter of Mequon, Wisconsin ended up spending over a year -- a year and a day in federal prison, paying somewhere near $300,000 in penalties and fines and $27 million in civil.

So -- on this issue. So this was not a casual wrongdoing. This man was a swindler and he was taking the federal government for a ride as well as other customers and misleading senior citizens about his product and paid a heavy price for it.

Then he decided having left prison that it's just fundamentally unfair that the law says that if you've been convicted of a felony you can't own a firearm. Now, I don't know what his appetite is when it comes to firearms whether it's a revolver or AK-47 with a banana clip.

I have no idea, but he went to court and said this is unfair. It was just mail fraud, and you're taking away my second amendment rights. So two out of three of your colleagues then basically said sorry, Rickey. You have forfeited your right to own a firearm because of your conviction of a felony.

You took a different approach, exactly the opposite approach and went deep into history. I think the earliest citation I see here was 1662 to figure out just what was going on here and whether or not he had to have committed a violent felony to have forfeited this right to own a firearm. Have I stated the facts close to what you remember?

BARRETT: I don't remember the amount of the law, some of those details, but yes. Rickey Kanter was convicted of selling fraudulent shoe inserts and it was a felony.

DURBIN: Yes. $27 million settlement along the way. So I'd like to take you into your thinking on this. When the Heller decision was handed down, Justice Scalia expressly said I'm not taking away the authority of government to impose limitations based on felonies, not violent felonies, felonies and mental illness.

He said as much in the Heller decision. And yet, this man who was your inspiration as you've told us all, you decided he was wrong and that it had to be a violent felony. Can you explain why?

BARRETT: I can.

So, we've talked about precedence, and in my court, the Seventh Circuit, there is precedence saying that that phrase doesn't control as, you know, my colleague, Judge Frank Easterbrook, has said a number of times that judicial opinions aren't statutes and shouldn't be read as if they were.

So Heller obviously wasn't about the scope of the right; you know, it's application to felons or those who are mentally ill, et cetera. And so, that passage was dicta.

It didn't fully dive down into it, but what I did was apply Heller's methodology, both Justice Scalia's majority opinion and Justice Stevens dissent, used an originalist methodology to answer that question, and I concluded that based on that history one couldn't take the right of way simply because one was a felon, that there had to be a showing of dangerousness.

And I didn't rule out the possibility that the government might be able to make that showing of about Rickey Kanter, but I think we could all agree that we ought to be careful of saying that because someone's a felon, that they lose any of their individual rights.

DURBIN: I want to get to that point but I'd like to stick with this for just a moment more. I'm honored to represent the city of Chicago and the state of Illinois. It's a great city but it has great problems, too, and one of them is gun violence.

On the average, we know in America, 100 Americans are killed every day by gunfire, 40,000 per year. In the city of Chicago, more than 3,200 people have been shot just this year -- 3,200.

According to the city's gun trace report in 2017, the majority of illegally used or possessed firearms recovered in Chicago are traced back to states with less regulation over firearms, such as Indiana and Mississippi.

[11:20:13]

The 2017 report found that Indiana alone was the source of 21 percent of all Chicago's recovered crime guns. We know how it works where you live, you know how it works -- there's a traffic between Chicago and northern Indiana and Michigan going on constantly, gun shows are held in Gary, Indiana and other places, and when they are selling these firearms without background checks, unfortunately these gangbangers and thugs fill up the trunks of their cars with firearms and head into the city of Chicago and kill everyone, from infants to older people. It just -- it's a horrific situation.

Law enforcement is fighting it, trying to get Indiana to at least do background checks at these gun shows with limited success, and we are trying to apply the standards that you disqualify yourself by buying a firearm to felonies and mental illness, and you want to take away part of that protection with your decision in this case, because it -- if you eliminate felonies and just confine it to violent felonies, you're opening up more opportunities for people to buy firearms, are you not?

BARRETT: Well Senator, you referred to gang members and thugs buying guns in Indiana and taking them across the border, and certainly that -- if the -- if they had felony convictions for doing the kinds of things that members of gangs and thugs do, nothing in Kanter says that the government can't deprive them of firearms and nothing says, in my opinion, that the government can't deprive Rickey Kanter of having firearms.

They simply had to make a showing of dangerousness before they did so and nothing in the opinion opines at all on the legality of background checks and gun licensing. Those are all separate issues.

DURBIN: But the majority zeros in and says what you've just said is totally impractical, that we are going to go case by case and decide well what kind of felonies and what kind of person?

And then they go on to produce evidence -- I can read the numbers here but you know them well because you wrote the dissent -- where the likelihood of committing a violent felony after being convicted of a felony is pretty dramatic, and they're saying to us "don't let us -- don't force us to make it case by case, we want to make it by category. It's the only practical way to deal with the thousands, if not millions, of people who are buying firearms."

You are aware of the fact that even those who are so-called not violent felons, quote "only felons," like Rickey Kanter, have a propensity to -- to commit violent felonies in the future, are you not?

BARRETT: There was no evidence of that in the case. And we, of course (ph) -- for example, the Armed Career Criminal Act, that's a federal statute, has to make judgments categorically all of the time about what count is crimes of violence.

So I don't think that's beyond the ten (ph) of courts in any area to identify which felonies are violent and, you know, which felonies are not but ...

(CROSSTALK)

DURBIN: Excuse me but I -- I won't address that issue. Let's go to Page 21 of the opinion and what the court said -- the majority in the court -- "most felon" -- they quoted Yancy -- "most felons are non- violent but someone with a felony conviction on his record is more likely than a non-felon to engage in illegal and violent gun use."

"For example, one study" -- this goes on to say -- "210,886 non- violent offenders found that one out of five were re-arrested for a violent crime within three years." So the evidence is there -- it -- it is there for the court to consider and you ignored it.

BARRETT: Senator, I didn't ignore it. As I recall, that evidence in the studies were unclear. It -- and -- let's see -- I can't remember, as I'm sitting here, the details of all of the statistics but I did consider it and I recall saying something in the opinions about the reliability of those studies because they didn't say whether someone had been convicted of a non-violent crime but had later been convicted of a violent crime, as well.

I mean, felonies cover a broad range of things, including selling pigs without a license, in some states, redeeming too many bottle caps in Michigan. I mean, so felonies now cover broad swathes of conduct, not all of which seems indicative of whether someone's likely to abuse a firearm.

DURBIN: So let's -- let me take you -- I'm not going to go so far back in history but I'm -- I'm going to take you back in history for a moment, and note that when that Second Amendment was written and you did the analysis of it, we were talking about the likelihood that a person could purchase a muzzle-loading musket.

We are now talking about virtual military weapons that can kill hundreds of innocent people. It is a much different circumstance.

Maybe an originalist pins all of their thinking to that musket but I've got to bring it to the 21st century.

[11:25:02]

And the 21st century has people being killed on the streets of Chicago because of the proliferation of deadly firearms.

But let me bring it closer to home and -- and tie up the George Floyd question with where I'm headed. There's also a question as to whether the commission of a felony disqualifies you from voting in America, and the history on that is pretty clear.

In an article, the American Journalists Sociology (sic) found that many felony voting bans were passed in the late 1860s and 1870s, when implementation of the 15th Amendment and its extension of voting rights to African Americans were ardently contested.

It still goes on today with voter suppression but we know that in reconstruction, in the Jim Crow era, in black COVID era, that was used -- a felony conviction was used to disqualify African Americans from voting in the south and -- and many other places.

The Sentencing Project today has found that more than six million Americans can't vote because of a felony conviction and one out of every 13 black Americans have lost their voting rights.

The reason I raise that is that in your dissent, you said disqualifying a person -- person from voting because of a simple -- simple -- because of a felony is OK but when it comes to the possession of firearms, wait a minute, we're talking about the individual right of a Second Amendment. What we're talking about in voting is a civic right, a community right, however you defined it.

I don't get it. So you're saying that a felony should not disqualify Rickey from buying an AK-47 but using a felony conviction in someone's past to deny them the right to vote is all right? BARRETT: Senator, what I said was that the Constitution contemplates that states have the freedom to deprive felons of their right to vote, it's expressed in the constitutional text, but I expressed no view on whether that was a good idea, whether states should do that, and I didn't explore in that opinion because it was completely irrelevant to it, what limits, if any, there might be on a state's ability to curtail felon voting rights.

DURBIN: Did you not distinguish the Second Amendment right from the right to vote, calling one an individual right under the Constitution and the other a civic right?

BARRETT: That's consistent with the language and the historical context, the way the briefs (ph) describe it, and it was part of the dispute in Heller of whether the Second Amendment was an individual right or a civic one that was possessed collectively for the sake of the common good. And everybody was treating voting as one of the civic rights.

DURBIN: Well I will just tell you that the conclusion of this is hard to swallow. The notion that Mr. Kanter, after all that he did, should not be even slowed down, he's on his way to buy a firearm. My goodness, it's just a felony. It's not a violent felony that he committed.

And then to turn around on the other hand and say, "Well, but when it comes to taking away a person's right to vote, that's a civic duty, it's something that we could countenance."

That is -- really goes back to the original George Floyd question. That was thinking in the 19th century that resulted in voter suppression and taking away the right to vote from millions of African-Americans across this country, and it still continues to this day.

I just don't see it. I think the right to vote should be given at least as much respect as any Second Amendment right. Do you?

BARRETT: Senator, the Supreme Court has repeatedly said that voting is a fundamental right, and I fear that you might be taking my statement in Kanter out of context.

What I said in that opinion was distinguishing between -- it was a descriptive statement of the state of the court's case law comparing it to felon -- stripping felons of Second Amendment rights. I expressed no view about whether -- what the constitutional limits of that might be or whether the law should change with respect to felon voting rights.

And obviously, that's a contested issue in some states that are considering it right now. And I have no view on that, and it wasn't the subject of Kanter.

DURBIN: It may not have been -- it wasn't the subject of the case, that's for sure. But in your writings, you raised this. It was part of your dissent, discussing the right to vote and a felony conviction eliminating it.

I'm afraid it's inescapable, you've got to be prepared to answer this kind of question. I read it and thought, I can't imagine that she's saying this. But I'm afraid I was left with the suggestion you might.

Which brings me to the conclusion here. We hear over and over from the other side of the aisle, We don't want any activist judges. We want judges that are going to go back to the original document, literally take it word for word, put it in historical context and don't get in the way of making laws. We make the laws, you're a judge, you stay away from them.