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Trump's Supreme Court Pick Faces Senator's Questions; Supreme Court Nominee Faces Questions on Gun Rights; Supreme Court Nominee Faces Questions on Affordable Care Act; Barrett Won't Say if She Would Recuse from Obamacare Decision; Supreme Court Nominee Faces Questions on Abortion Rights; Barrett Asked About "Court Packing," Adding Seats to Supreme Court. Aired 11:30a-12p ET.

Aired October 13, 2020 - 11:30   ET

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

SEN. RICHARD DURBIN (D-IL): 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.

And yet when we look at this case, the notion of what disqualifies you from buying a firearm was being rewritten by the dissenting judge, and saying, "When we say 'felony,' we just mean 'violent felony.'"

[11:30:08]

Well, the word "violent" isn't in there, but you found it -- or at least found reference to it.

It's not the only time this has happened. In Citizens United and its progeny, Republican-appointed justices struck down bipartisan campaign finance reform to unleash a flood of dark money into our political system. Part of that flood is paying for the ad campaign promoting your nomination for the Supreme Court.

I know you said you've gone radio silent in following the media? I don't blame you, I do the same thing politically. But I can just tell you, I've seen them. They are beautiful, expensive ads boosting your nomination for the Supreme Court from organizations we've never heard of, spending millions of dollars to make sure you get on the Supreme Court. Citizens United opened the door for that.

And in Shelby County, conservative justices gutted the Voting Rights Act to unleash a wave of voter suppression across the country going back to the George Floyd moment. Unfortunately a lot of it is for racial purposes.

And this is an example -- two or three examples -- that I've given here of activist judges rewriting the law, abolishing the law. People have to get real.

As I said to you on our phone conversation, "I don't think you put the facts here and the law here and nine justices come to the same conclusion." Cases of 5-4, 6-3, 7-2, unanimous, people see things differently based on their backgrounds, their values, their experience.

And I think it's simplistic to think this is a robotic performance once we put a judge on the bench. They just go back, read the Constitution and rule. It's not that simple, and I think you've acknowledged that by saying even originalists disagree with one another. Is that true?

AMY CONEY BARRETT, NOMINATED TO BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES: Yes. Law is hard and it's complicated and people who approach it from different jurisprudential perspectives will sometimes reach different results.

I mean, I think that's hard to deny because, as you say, every vote from the Supreme Court isn't unanimous, and sometimes it is but cases don't get to the Supreme Court unless the circuits disagree among themselves. So it's hard.

But to the extent, Senator Durbin, that you're suggesting that I have some sort of agenda on felon voting rights or guns or campaign finance or anything else, I can assure you and the whole committee that I do not.

DURBIN: I didn't say that, and I wouldn't say that. But I will say that you come -- if you're successful in this pursuit -- you come to the Supreme Court with life experiences. You come to the Supreme Court having read a lot, I'm sure. And drawn some conclusions in your own mine about certain things and certain issues.

Everyone on the court has that same background, they bring something to it that is just not generic, it's individual. And that's the point I'm making. There's an individualism to this, the (ph) class of originalists on the Supreme Court are not all going to vote the same on every case. And I think merely saying "originalism" does not absolve you or us from observing the obvious: There are going to be differences.

I thank -- would you like to say something? I don't want to cut you off.

BARRETT: No, that's OK.

DURBIN: OK, thank you very much.

BARRETT: Thank you, Senator.

GRAHAM: -- Senator Durbin.

We'll go to Senator Lee, and after that we'll take a 30-minute lunch break and start back with Senator Whitehouse.

Senator Lee?

SEN. MIKE LEE (R-UT): Thank you, Mr. Chairman. I have two letters for the record that I'd like to have admitted. They're offered by former law clerks of Judge Barrett's.

GRAHAM: Without objection.

LEE: I'd encourage all of my colleagues to read them, they're outstanding and provide great insight into Judge Barrett's immense qualifications.

Judge Barrett, moments ago, we went through a rather interesting set of exchanges. One of my colleagues -- I hope I misunderstood him -- seems to have suggested that it's a political talking point for you to decline to indicate how you would rule on a particular case or a particular type of case.

To the extent that that's what any colleague has suggested -- I'd remind that colleague that's just wildly incorrect. It's wildly incorrect with canons of judicial ethics, with federal law, with the statement laid out by Justice Ruth Bader Ginsburg in her own confirmation proceedings before this very body in this very room, nearly 30 years ago.

It is imperative that you uphold those standards, and I applaud you for doing so. And I think on no planet is it appropriate for anybody to suggest that that's a political talking point, for you to say, "I'm not going to indicate how I'm going to rule in a particular case."

Justice Ginsburg did in fact say it well (ph), and some of this has been quoted today. I'm going to quote it again, just for good measure. She said, "Judges in our system are bound to decide concrete cases, not abstract issues.

[11:35:00]

A judge sworn to decide impartially can offer no forecast, no hints for that would show not only disregard for the specifics of a particular case, it would display disdain for the entire judicial process.

"Similarly, because you are considering my capacity for independent judging, my personal views on how I would vote on a publicly-debated issue, were I in your shoes, were I a legislator, are not what you will be closely examining." That's what she said. She said it well. It was true in 1993, and it remains true today.

I want to turn next to a -- a line of -- of questioning that you just finished, that you just completed. I -- I, too, have read the Kanter case and I am thrilled that we've got a jurist who is willing, when looking at somebody whose constitutional rights are about to be taken away, thrilled to have a jurist who's willing to consider a pre- deprivation (ph) review for that individual.

Is it unusual, Judge Barrett, to consider someone's constitutional rights on an individualized basis before having a specifically- enumerated, constitutionally-protected right removed?

BARRETT: That would be very, very unusual.

LEE: It would be very, very unusual and it would be unwise, would it not? BARRETT: Well, I think what I could say to that, to be careful about how much law I'm analyzing is that the 14th Amendment due process clause certainly guarantees to each individual due process before a liberty is taken away.

LEE: I also appreciated the thorough analysis that you undertook, making clear that our -- our -- our rights in this area don't just date back a few decades. They don't just date back to the 60s. They don't date just back to the 1780s, or the 1760s. They date back at least to the 1660s.

I mean, they go way, way back. There is a lot of history that went into what became the Second Amendment. There were conflicts. This involves not just partisan conflicts, but in conflicts between the king and subjects, and not just between the king and subjects in the abstract, but very often, it was between Protestants and Catholics.

Sometimes it was Catholics who weren't trusted with guns. Sometimes it was Protestants who weren't trusted with guns. But there was a lot of violence that went into that, and that led to our adoption of that amendment.

I appreciate your historical analysis of this, your willingness to be thorough, to make sure that when someone's constitutionally-protected rights are taken into account, you're going to do your homework.

You're going to do your homework even if it's hard. You're going to do it even if you've got colleagues who aren't willing to go there. That's what judicial leadership is. Judicial leadership involves willingness to stand alone.

Judge Barrett, one of the things that came out to me as -- as I read your opinion in the Kanter case is that your commitment to textualism and originalism are, in fact, real. They're not feigned. This is the kind of thing you can't fake. This isn't something you make up at the last minute.

And yes, I agree with Senator Durbin. Being a textualist and an originalist doesn't guarantee a particular result, a particular outcome in any particular case. But it does indicate a style, a preference. Tell me why textualism and originalism are important to you.

BARRETT: Because I think that both statutes and the Constitution are law. They derive their democratic legitimacy from the fact that they have been enacted, in the case of statutes, by the people's representatives, or in the case of the Constitution, through the Constitution-making process.

And I, as a judge, have an obligation to respect and enforce only that law that the people themselves have embraced. As I was saying earlier, it's not the law of Amy; it's the law of the American people.

And I think originalism and textualism, to me, boil down to that -- to a commitment to the rule of law, to not disturbing or changing or updating or, you know, adjusting and -- in line with my own policy preferences, what that law requires.

LEE: And is it -- is it the subjective motivation, the subjective intent of an individual lawmaker or drafter of a constitutional provision that we're looking at, or is it original public meaning? And if so, what -- what's the difference between those two?

BARRETT: It's original public meaning, not the subjective intent of any particular drafter. So one thing I have told my students in constitutional law is that the question is not, what would James Madison do? We don't -- or we're not -- we're not controlled by how James Madison perceived an particular problem.

That's because the law is what the people understand it to be, not what goes on in any individual legislature's -- legislator's mind, is, I respect you greatly, Senator Lee, but what you think in your mind, rather than what passes through both houses and is signed by the president -- that's what's the law, not any private intentions you have.

[11:40:10]

LEE: So -- so regardless of -- of what -- I -- let's say I -- I -- I passed Bill XYZ, and I'm the sponsor of it. I take -- I take it down to the floor, and I say, "Here's Bill XYZ, and here's what I think about it.

Here's what I intend to do with it," and I put that statement into the legislative record. What, if any, impact should that statement have on the meaning of Law XYZ, once it becomes law?

BARRETT: Nothing. You've got to get it into the law itself if you want it to be law. Legislative history is not what goes through the process of bicameralism and presentment.

LEE: Regardless of -- of how passionately and -- and persuasively I make that point in whatever glorious speech I give in support of Bill XYZ, it doesn't make a darn bit of difference, does it?

BARRETT: It doesn't. I'm sure the speech would be glorious, but I assume the point you make probably would be made by the advocates in the case, too. And so in that respect, you are functioning as an advocate when you make the glorious statement, but not speaking with the voice of the lawmaker, because no individual does. It's the full body that speaks.

LEE: I want to speak next about the Affordable Care Act. We -- we've seen posters going up over and over and over again. We've seen them yesterday, and we've seen them today. We've seen a lot of compelling stories of -- about people whose lives have been marked by difficult things that they've endured.

They've involved touching and heartwarming stories. I continue to doubt the relevance of things like that here, especially in so far as they're being used to suggest that your confirmation to the Supreme Court of the United States has anything to do with their healthcare. Tell me why you think that any individual American's healthcare status is or is not tied to your confirmation to the Supreme Court of the United States.

BARRETT: It is not tied to my nomination to the Supreme Court of the United -- United States. I have said repeatedly under oath that I had no conversations with anyone in the White House about that case. And I -- I'm not sure it -- to the extent there's a suggestion that I have an agenda, that I want to strike down people's protection for pre- existing conditions.

That's just not true. I've never taken that position, and as I've also said repeatedly, any policy preferences that I have don't matter anyway. They're irrelevant. So making that law, coming out with a contrary to the ACA -- that's your job.

LEE: It is our job. It is the job of policy-making branches of government. It's the job of whatever combination of state and federal lawmakers and other policymakers have, and a judge is not a policymaker.

When Congress passes a law, Congress is in charge of making sure that that law works. Insofar as that doesn't work or that law ends up being stricken down, it's our job to replace it with something that does work whether constitutionally or otherwise, in all respects. That's our job, not yours.

You made some comments a few years, comments with which I wholeheartedly agree. Raising a criticism with Chief Justice Roberts, and his majority decision in NFIB v. Sebelius.

That decision -- and don't worry, I'm not going to ask you to weigh in on this. You made those comments at the time and they're not relevant to me now, but I set this up for reasons I'll explain in a moment.

He rewrote the Affordable Care Act, not just once, but twice, in substantive ways, in order to save that law from an otherwise inevitable finding of unconstitutionality, because that law, as written by this Congress was in fact unconstitutional in two material respects at issue in NFIB v. Sebelius.

Blatantly unconstitutional, he effectively acknowledged that the law as written couldn't pass constitutional muster, and so he rewrote it not just once but twice in order to save it. That's water under the bridge, that happened -- it's inexcusable that he did that, he misused the judicial authority.

That case has absolutely nothing to do with California v. Texas. It has absolutely nothing to do with the question of severability in that case. Would it be fair to say that my very strong opinions that I've just expressed do not indicate how I would feel -- how I would lean were I a jurist in California v. Texas?

[11:45:10]

BARRETT: I think you're correct Senator Lee that the question, the legal issue is entirely different in California v. Texas. Severability is an own independent doctrine, it has nothing to do with the statutory interpretation questions presented in Sebelius. LEE: In many circumstances in this country we see emotionally charged issue that boil -- that boil for a long time and they can't always be resolved. Not everybody's going to agree on everything.

Not everybody is going to agree on certain hot button social issues that result in some cases, from just basic differences in how people view life and how people view their place in the universe.

One of those areas where it manifests itself is in the area of abortion. People view life and when it begins, differently. Some of that's informed by religious beliefs, some of it's informed just by people's commonsense approach to what they think the law ought to say and what it ought not to say.

Disputes regarding when life begins, and disputes regarding abortion didn't begin with Roe v. Wade. What did change with Roe v. Wade, however, was the federalization and the grasping of the issue. And the taking it beyond the realm of political debate within the Federal Judiciary such that elected lawmakers were no longer in a position to be the primary drivers of policy.

As a result over the last few decades you've had all kinds of questions that have been put in to uncertainty. You've got uncertainty by people at the state level, who want to make their own decisions about certain things around abortion.

They know they can't prohibit it entirely, they know that there's this undue burden standard that has to be addressed, nobody's completely sure in advance what that means and so they work around it.

There are discussions that arise regarding health and safety qualifications for abortion clinics, how close an abortion clinic needs to be to an accredited hospital, how it needs to be staffed, what the sanitation protocols are.

And then you've got more recently some states passing laws saying look, there's abundant medical science showing that an unborn human can feel and respond to pain as early as, I don't know, 10 or 12 gestational weeks, but certainly by 20 weeks.

And so, by 20 weeks we're going to adopt a different set of abortion procedures for an abortion as a result of that because if this is a human that everybody agrees can feel and respond to pain, we ought to handle that differently. All of those things -- the legitimacy of those laws are thrown in to the federal courts, yet again all because those were made federal issues.

Now, I want to be very clear, you'd have the impression from watching debates in circumstances like this one -- and in protests outside the Supreme Court of the United States you'd have the impression that if Roe v.

Wade didn't exist, that all of a sudden abortion would immediately become illegal in every state in America. That assumes a lot of facts, not in evidence -- in fact, that assumes a lot of things contrary to evidence. It is not -- it is simply not the case that the fate of healthcare in America turns on whether or not someone is confirmed at the Supreme Court of the United States, nor is it a fact to suggest that the availability of an abortion or lack thereof is contingent upon anyone's confirmation to the Supreme Court of the United States.

The fact that we have this debate, and the fact that it's become as protracted, as personal as ugly as it has -- who -- I suspect retrace (ph) to the fact that we tried to take a debatable matter beyond debate, and we tried to take it outside the political branches of government where people can elect their individual representatives and have law respecting and reflecting the views of their respective communities.

We're a country of what, 330 million Americans. It's really, really difficult to have those 330 million Americans reflected in nine members of a Supreme Court.

[11:50:07]

It's still really hard to have them reflected in 100 Senators and 435 representatives -- that's doable, especially when those people are elected, they stand for election every couple years. In the case of the House every six years, and the case of the Senate. It doesn't happen that way in the Supreme Court of the United States.

So to my colleagues on the other side of the aisle, who are fear mongering on this, causing people to worry, lose sleep over this -- fundraising over this -- fundraising over threats that people are going to lose their healthcare, fundraising over threats that people are going to be dying in the streets because of the lack of availability of this or that medical procedure, I'd ask, have we created a monster?

Have we ourselves through our own inaction, through our own voluntary cessation of authority to a non-legislative, non-political branch -- have we created the very set of untenable social circumstances that are causing people to protest outside of a nonpolitical entity? I think we have to ask ourselves that question from time to time.

Life is, in fact, valuable. It's not a religious statement to make the observation. In fact, it's the foundation of basically all of our loss, not just in this country, not just in -- in countries with Christian origins, but in basically every country that has ever existed anywhere in the world.

A purpose of government is to protect life. That's what it is about. If we can't agree on the fact that it's reasonable that people ought to be able to have some say at least at some limit, at least at some point beyond the moment when an unborn human can feel in response to pain, something is wrong with us.

And if we're going to leave those things perpetually in the hands of the unelected, might be really convenient for political fundraising within Congress. But it's not good for the United States of America. It's not good for constitutionally limited government, it's not good for our individual liberties.

Judge Barrett, Alexander Hamilton was prescient in a number of areas. He had some crazy ideas, he did some crazy things. He was also freaking brilliant. I think he foresaw certain aspects of our lives when he described the differences between the branches of government in Federalist 78.

And in Federalist 78, he said that the legislative branch, Congress, being a political branch, a branch whose job it is to make policies, to make law, its possessed with will and that what's possessed on the judicial branch is not will, but judgment.

He then went on to explain that it's really important to maintain that -- that clear distinction between will and judgment, less you have the judicial branch consisting of people who are not elected by the people, not accountable to the people at the regular intervals and who served basically for the rest of their lives, so long as they're on good behavior. You can't have them exercise and will, because it's not their job. What you think he meant? What's the difference between will and judgment?

BARRETT: I think will is the imposition of policy preferences as happens in the making of law. Judgment is evaluating that law for its consistency with the Constitution, for example. Or to give another example, to interpret what that law means.

But it most certainly is not the imposition of policy preferences. A judge who approaches a case as an opportunity for an exercise of will has acted -- has betrayed her judicial duty.

LEE: How does she know when she's reached that point?

BARRETT: So I think it requires disciplined judicial decision making. So you approach the text, you treat it as a text, you treat it as law. You know, I've described originalism and textualism so I won't belabor that point.

But I will say that one practice that I have, one check I put on myself just to make sure that I'm not biased is that when I write an opinion, I try to read it from the perspective of the losing party so that any sympathy that I might feel for the particular results that I reach, I try to make the sympathy run the other way to see if it will still hold and also to see like -- you know, I would disappointed in this outcome if it was my child who is sentenced or a criminal conviction or civil law, whatever it is on the line.

[11:55:19]

But would I still think it was a well reasoned opinion? And that's the test that I use for myself. I think discipline is required. But I take it very, very seriously.

LEE: As we've had this conversation today, one of the -- one of the arguments that's been made by some of my colleagues refer to activism and has -- has accused -- if I understood the argument correctly. Some text was originalist jurists as having engaged in activism. I want to be clear, I -- I'm one who doesn't believe that there is anything worse about an activist judge than a pacifist judge.

Meaning I think it's every bit as bad to be a pacifist; that is, for example, to let stand an invalid unconstitutional law as if it were valid and constitutional. Every bit as bad to do that, as it is to invalidate as unconstitutional something that is in fact not unconstitutional. What you do agree with me that you both of those are equally in instances of bad judging?

BARRETT: They are both instances as you pose them, of not following the law, not following the Constitution or not correctly interpreting the statute.

LEE: Of the same token, a judge who fails to grant a meritorious dispositive motion and the judge who grants a nonmeritorious dispositive motion, they've both probably done an equally bad thing, is that right?

BARRETT: Yes.

LEE: Does the Constitution say anything about the size of the Supreme Court?

BARRETT: The Constitution does not. That is a question left open to Congress. It's my understanding that it's been nine for about 150 year; but that's a matter of statue, not constitutional requirement.

LEE: So it's statutory? A statutory decision, one that's stood for more than a century and a half. It's a decision nonetheless that has some bearing -- could have some bearing on constitutional issues, correct?

BARRETT: Insofar as there would be more decision-makers on the court?

LEE: Yes, if -- if we abandoned the long-standing historical practice and tradition of having nine justices, could that have an impact on the way the three branches of government interact with each other?

BARRETT: Possibly. But it's difficult for me to imagine what specific constitutional question you're asking, and of course if there were one I couldn't opine on it.

LEE: Of course. Of course.

There are strong reasons, I believe, why over the last more than a century and a half, we've left that number at nine. As you point out, there's nothing in the Constitution that requires it. We could come up with any number we wanted. There does have to be a Supreme Court and such inferior courts as we choose to create, but it doesn't specify the number of seats that could be on there.

There are nonetheless good prudential reasons, reasons having to do with respect for the separation of powers between the three branches of government, reasons that have, over the last 150-plus years left us to leave that number at nine.

The last time, as far as I can tell there was any serious effort to move the number above nine was in the fall 1936 when President Franklin D. Roosevelt got tired of this so-called Four Horsemen of the Apocalypse -- a few members of the Supreme Court who were consistently voting against his agenda, and sometimes joined by one or more members of the Supreme Court.

He got particularly tired of this and so he proposed packing the court, and let me explain what I mean by "packing the court" here. What I mean when I refer to this is increasing the number of seats on the Supreme Court and doing so by statute, with the intent of altering the composition of the court for short term political gain.