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Trump's Supreme Court Pick Faces Senators' Questions; Barrett: "No One Ever Talked About Any Case With Me" Before Nomination; Barrett Won't Say Whether A President Can Delay A Federal Election; Barrett: You Wouldn't Be Getting Justice Scalia, You'd Be Getting Me; Judge Barrett Asked About George Floyd Case. Aired 12-12:30p ET

Aired October 13, 2020 - 12:00   ET

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

[12:00:00]

SEN. MIKE LEE (R-UT): That's what FDR wanted to do. Notwithstanding the fact that he had an overwhelming super majority in both houses of congress, fortunately, FDR's idea that he pushed in the fall of 1936 didn't make it anywhere.

It didn't gain progress. It met enough opposition even with both houses of congress being overwhelmingly controlled by his political party, that it stalled quite mercifully and it's remained ever since then at nine justices. I think it would have been a colossal mistake.

Joe Biden himself as a U.S. Senator, as a member of this body in a proceeding of this committee in 1983 gave a rousing speech that I recommend to all, talking about that very thing. Acknowledging that the constitution doesn't require it, but our respect for the separation of powers really ought to lead to a sticking to the number nine. Don't pack the court.

In recent days, I have seen some in the media and some in this body try to redefine what it means to pack the court? Some have suggested well court packing takes various forms, and it can mean confirming a lot of people all at once.

Some have defined it so as to suggest that it consist of doing that which the Trump Administration and the Republican Senate have been doing over the last three and a half years, which is filling vacancies as they have a reason and doing so with textualist, originalist judges.

This may not be something that some like, but this is not court packing. Court packing is itself manipulative, it's something that has great danger to do immense political and constitutional harm to our system of government, in part because it would set up a one way ratchet.

Once you create a position and confirm someone to that position, absent death, retirement or impeachment of removal that position remains in place. So if, for example, future Congress and White House were to decide to get together and to pack the court and increase the number, say, to 11, and let's say it's Democrats who do that. And we've got Joe Biden now as a presidential candidate who is refusing to say whether he would do it. There's a reason he is not saying whether he would do it. There's only one reason why you refuse to answer that question, and if you're wanting to be able to do it, but you don't want to take the heat for the fact that you're thinking about doing it right now.

So if they do that, where does it lead? Inevitably leads to the point where the next time Republicans have control of both house of Congress and the White House, they'd increase it as well. You would end up increasing it incrementally.

Before long, it looks like the Senate in "Star Wars" where you've got hundreds of people on there; I don't know what the total number would be. But you increase it at all, you change the number of all, you do so for partisan political purposes at all, you delegitimize the court.

And you can't delegitimize the court without fundamentally threatening and eroding and impairing some of our most valued liberties. You can't do that without inevitably threatening things like religious freedom.

Things like free speech, things that are themselves often unpopular, but are protected by the constitution precisely because they're unpopular, and yes, in that respect the constitution is sometimes counter democratic. Sometimes it can be described as fundamentally undemocratic.

In fact it's the whole reason to have a constitution is to protect us from the impulse of a majority that might be bent on harming the few in the name of the many. That's why the law is so important. That's why the position for which you're being considered is so essential.

And that's why we've got to do our job to make sure that the only people who get the job for which you've been nominated fit the bill. You, Judge Barrett, are someone in whom I have immense confidence, immense trust. And I look forward to voting to confirming you for that very position.

SEN. LINDSEY GRAHAM (R-SC): Thanks, Senator Lee. We'll take, let's come back at 12:45. We'll start with Senator Whitehouse. We have 15 Senators left. Everybody takes the 30 minutes, seven and a half hours; we'll take a break for dinner tonight sometime later on and a short break.

Are you doing OK? Three hours of outright? So we'll come back at 12:45. And right now we're on schedule to be here until 9:00. But we'll do whatever the Committee wants. We're in recess until 12:45.

[12:05:00]

JOHN KING, CNN HOST: I am John King in Washington, thank you for sharing your day with us. You are watching right now Judge Amy Coney Barrett leave the Senate Judiciary Committee hearing room. Three hours now as she has been taking questions from senators in this confirmation hearing. Judge Barrett of course, President Trump's pick to replace the late Ruth Bader Ginsburg on the Supreme Court of the United States. And Justice Barrett would shift the court. If she's confirmed, it would mean a 6-3 conservative majority, that's defining judicial legacy for this president.

And that is why you have a giant cause for alarm among Democrats, worried for example, Justice Barrett might throw out Obamacare might throw out abortion rights. It has been a fascinating discussion. Some about of it about her legal views, some of it, politicians giving speeches. That is what happens at Supreme Court Confirmation hearings.

Some of the controversy is about her views, what does she think of the Affordable Care Act, what does she think of Roe V. Wade and subsequent abortion rights decisions with some of the controversy is about the timing.

President Trump trying to get this court changing nominee confirmed in the days before a presidential election. Let's discuss what we've seen so far with our great panel, Dana Bash, Joan Biskupic, Jeffrey Toobin, and Nia-Malika Henderson.

Dana, we'll get to the legal complications in a minute, but first and foremost, this is a political conversation, the challenge for Judge Barrett not to lose any Republican votes. She doesn't have to need any Democrats, she just can't lose any Republicans and she will be within a couple of weeks Justice Barrett.

So far even from the accounts I am getting from Democrats, they believe she's had - they may not like the answers, but they think she's been very impressive, handled herself well and not made any mistakes.

DANA BASH, CNN CHIEF POLITICAL CORRESPONDENT: Absolutely. I am hearing the same thing from Democrats. And what she has done is try to follow the lead of people who have been nominated before her, even by Democratic Presidents. And she even cited Alan Kagan, she cited Ruth Bader Ginsburg, although she said that she didn't want to give hints, forecasts or previews of what she's going to do on the bench?

Ironically, Ruth Bader Ginsburg said flatly that she is for Abortion Rights that she is sort of in the vernacular pro-choice and that is obviously not something that Amy Coney Barrett would give in at all.

I mean, she said judges can't just wake up one day and said, I have an agenda, I like guns, I hate guns, I like abortion, I hate abortion and walk in line like a royal queen and in part pose that well on the world.

That is exactly what if you are hoping that a judge or a judicial nominee particularly for the Supreme Court goes before a Committee like this that they are, that they walk that line as carefully as possible.

The other thing that I will just note which I think is going to be an instant meme, John, is the fact that she had no notes. Then she was asked, but I think it was Senator John Cornyn to hold up the notepad in front of her, and it was blank except for the United States Senate kind of stationery that was on it.

And that's it. I think that is going to be very impressive to Republicans and Democrats, not that everybody didn't think she was smart, but because she was that confident in how she was going to express herself.

KING: Right. And let's be honest. Number one, if we can roll back the clock, and we're not so close to election, number two, if we can roll back even further and this to another Republican President in another age, I've been in Washington long enough, Judge Amy Coney Barrett would be getting 70 votes or more in the United States Senate, because of her qualifications.

BASH: No question.

KING: But we don't live in that age, Joan Biskupic. We don't live in that age and Democrats were trying to make that point saying that President Trump is on the record saying he wants the Supreme Court to overturn Roe V. Wade. President Trump right now is asking the Supreme Court to throw out the Affordable Care Act.

President Trump in picking Judge Amy Coney Barrett has said he needs a ninth justice on the court because this election could lead to court challenges that make their way to the Supreme Court.

President Trump of course saying on record any election he loses, in election that is clearly been rigged. So one of the questions, this is an exchange with Senator Pat Leahy; he is essentially trying to say, did you promise the president anything?

(BEGIN VIDEO CLIP)

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 his 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. Let me be clear. I have made no commitment to anyone, not in the Senate, not over at the White House about how I would decide any case?

(END VIDEO CLIP)

KING: By the books answer there, Joan, and by the books answer that of course has more gravity if you will, the question has more gravity at the moment because of the way this president conducts himself and makes clear he expects and demands loyalty.

[12:10:00] JOAN BISKUPIC, CNN LEGAL ANALYST: That's absolutely right. And he has run against the Affordable Care Act, he's one - since its inception has been arguing against it. And he suggested that he was choosing someone who would both be against that and also might help him out if an election dispute came before the justices.

She seemed to want to make clear that obviously she made no promises. But the Senators had a reason to press her, especially on the Affordable Care Act, because she in the past had written critically of Supreme Court rulings that upheld the act. She had said that Chief Justice John Roberts' rationale for upholding the ACA in 2012 had pushed the statute beyond its plausible meaning.

So, they wanted to ask about that. They wanted to ask why she said in 2015 when the Supreme Court again upheld it. Why she thought the dissent had the better view? So they were legitimate questions, but she stressed that as a judge she is not precommitting to anything. But it's a very relevant question for them to have.

On the overall recusal, I just want to note an answer that I was sort of surprised that she gave. I wasn't surprised that she said that she would assess the situation when it came up whether to recuse from a particular case.

But she said that she would consult with her colleagues, and said that, that was the usual practice. I frankly don't know that that is the usual practice for justices to talk to the full court about whether to recuse.

As you know, John, it is in the hands of individual justices whether they will sit out a case. Supreme Court Justices are not bound by the federal ethics law, but they generally do follow them, but it is in the individual justice's hands.

KING: And Jeffrey, let's continue on ACA for a minute. And you're the justice here as our Chief Legal Analyst, Justice Jeffrey Toobin, because the Democrats know they can't trip her up on a basic question, how would you rule?

So they're trying to get a little bit more granular. The challenge to the Affordable Care Act before the court, many people believe if the high court has the potential just got it, throw it out, say it is on its phase unconstitutional.

There's this question of severability, a legal term, but being that if there's ten elements of a piece of law, and you don't like one of them, do the other nine stand. Listen to when that subject came up.

(BEGIN VIDEO CLIP)

BARRETT: There is a doctrine called severability, which sounds like legalese, but what it means is, is it OK with the statute, could you just pluck that part out, and let the rest of the statute stand? Or is that provision which has been zeroed out so critical to the statute that the whole statute falls? So really the issue in the case is this doctrine of severability, and that's not something that I've ever talked about with respect to the Affordable Care Act. Honestly, I haven't written anything about severability that I know of at all.

UNIDENTIFIED FEMALE: So you have no thoughts on the subject?

BARRETT: Well, it's a case that's on the court's docket and the canons of judicial conduct would prohibit me from expressing a view.

(END VIDEO CLIP)

KING: Jeffrey Toobin, did you take anything away from that or the broader conversation, about the specifics of the court challenge that she could hear literally in our first week or two on the job or more broadly about her philosophy?

JEFFREY TOOBIN, CNN CHIEF ANALYST: Well, first of all, Mr. King, I'd appreciate if you call me your honor if you're going to call me.

KING: You're Excellency.

TOOBIN: I thought she gave a very good and clear definition of what severability is. Can you pluck a piece of the legislation out without having to get rid of the whole thing? In doing so, I think she minimized the significance of the case because at other points she said well, the case is not really about pre-existing conditions, it's not really about lifetime limits on benefits.

It is about that, because if you find as the Trump Justice Department has urged the court to find that you can't pluck out this piece, you have to get rid of the whole piece of legislation. So the case that is being argued on November 10th, if the Trump Justice Department gets its way, the whole ACA is gone.

All of pre-existing condition protections, staying on your parents' insurance till you are 26, all of that is at stake in that case, and I thought she was trying to sort of say well, the case isn't that big a deal. It is that big a deal.

KING: It is that big of a deal. And so, Nia-Malika Henderson, we have this remarkable collision if you will. She has a compelling remarkable personal story, a family of seven, two of them adopted. She makes no secret of the fact that she's conservative, she's a Catholic, and she's pro-life personally.

It is a compelling personal story against a compelling political moment in the fact that democrats do not want to give this president a third Supreme Court pick, especially because we are three weeks from a presidential election, and add in that the Republican majority before Donald Trump was in Washington blocked President Obama from getting a pick in the final year of an election.

[12:15:00]

KING: So you have this collision if you will of without a doubt an impressive judge, whether you agree or disagree with her views, whether you worry about what she might do as a Supreme Court, that remarkable personal story, that again in any other time we'd be having a very different conversation. But because it is this president at this moment, this is Armageddon in Washington.

NIA-MALIKA HENDERSON, CNN SENIOR POLITICAL REPORTER: That's right and Democrats both privately and publicly admitting that it's unlikely that they're going to be able to stop her going to the Supreme Court. I think Amy Klobuchar yesterday essentially said that, what Democrats obviously want to fight, they want to highlight the issues they want to highlight, the importance of the ACA, particularly during this pandemic.

So you see a lot of campaigning of Lindsey Graham there in his opening statements, talking about South Carolina. He is in a tough fight for his political light down in South Carolina. Talk about all the money that's flooded into that race on the other side.

So it is a very unusual moment for this country, just three weeks before Election Day to be replacing RBG, who is a legend on the left with someone who basically says, she's in the mold of Scalia, the female Scalia, even though she tried to sort of back away from that, that is likely what her judicial record has been in the past and will likely be in the future.

It was interesting to sort of see her hold up that blank piece of paper, but it is in keeping with what she's trying to present herself as sort of a blank slate that people can't really predict what she's actually going to do. When in fact she is there because our conservatives want somebody to rip out the ACA, they want somebody to overturn abortion rights in this country.

So it is sort of an irony there. And then you see Republicans also, I think was Mike Lee essentially say, do you have anything to do with the fact that people do have health care? Should anybody who gets health care through the ACA be worried about your ascent to the Supreme Court?

And it's like, well, she does have something to do with it. She will likely rule on that she'd be confirmed, which it looks likely. That case comes before the Supreme Court a week after Election Day.

So there is a sort of disingenuousness going on here. Republicans want her to act in the way they want her to act and overturn abortion, overturn the ACA. And she's sort of acting like well no, she doesn't really have anything to do with that.

KING: Dana, you were about to jump in.

BASH: Yes. I am sorry about that, Nia. Nia talked about the fact that she distanced herself from the label of female Scalia, I thought that was another key moment.

HENDERSON: Right.

BASH: Not just because she is trying to differentiate herself from the person she clerked for her mentor. But also because even though that is how she was described for many years in conservative judicial circles, it is kind of inherently sexist.

Why can't she just be her own person? And that's basically what she was saying. So I think it had multiple, it sort of landed in multiple ways when she said that she is Judge Barrett or would be Justice Barrett, not the female anybody.

TOOBIN: I'm not sure that I would agree with that because, you know, it's very unusual for a justice or a nominee as Amy Coney Barrett did at the White House at the famous infamous super spreader event, where she said, I follow Justice Scalia's judicial philosophy. He was a controversial figure on the court.

BASH: Right. But that's the different than being called the female anybody. That's the point I was trying to bring in.

TOOBIN: OK. Yes. Certainly that. But I think most justices, one justice who is pretty uncontroversial is Justice Robert Jackson who served in the 1940s and 1950s. He is sort of some of the liberals and conservatives can always agree on him, because he offered something to both sides.

To say that you follow Justice Scalia's philosophy is a very distinctive thing, and something that tells you a lot about what kind of justice she's going to be. And that's the kind of justice that Donald Trump wanted to put on the court.

KING: It also tells you she understands the outside legal operation that this president has accepted, to pick his judges and vet his judges for him, the federalist society which has made clear that's what it likes on the court.

Let's go up to Capitol Hill, and CNN's Phil Mattingly who is trying to keep track of the math and whether or not it changes? Because if it doesn't, and Judge Barrett will be Justice Barrett and all of the politics playing out in this election year, final election weeks, confirmation hearing. Phil, what have you learned so far?

PHIL MATTINGLY, CNN CORRESPONDENT: Well, I think there are a couple things to keep in mind, one that this nomination to this point in time is still on cruise control for Senate Majority Leader Mitch McConnell. He already has the commitments of 51 Republicans who support this nomination.

And so, long as those Republicans stay healthy, which of course has been a little bit in question over the course of the last ten days or so, they're very on track to get this nomination through.

[12:20:00]

MATTINGLY: And nothing that I've seen at least in talking to Republican officials over the course of the last couple of hours this morning is going to change that. If anything, it's made Republican Senators even more enthusiastic about the nomination. I wanted to pick up, John, on one thing that you guys were just talking about, where Amy Coney Barrett separated herself in terms of the idea of being the female Antonin Scalia. There is also a strategic reason to do that as well.

Democrats went into this hearing talking about that fact that they were going to look, its Scalia is to sense, and if she is supposedly a carbon copy of him, then that should help give them some - a sign or signal in terms of how she might rule on certain issues that she made very clear as most Supreme Court nominees do, that she will not comment on during this hearing.

So doing that right out of the gate was actually helpful to some degree when those questions were almost certain to come. I do think the other interesting element here John is how Democrats have approached this. So if we saw yesterday, exactly what they were trying to do, you've covered this town as long as most, as long as anyone.

Democrats saying that unified and that on message, that many of them for that long is a bit of a rarity here on Capitol Hill. And they've made clear they're going to continue that throughout the course of the day.

And I think the expectation is that you have kind of the upper tier of the dice that the ranking member, Dianne Feinstein, Richard Durbin as well kind of lay the ground work for a lot of the more granular questions that will be coming about specific cases, kind of what you were talking about earlier, John, trying to draw out.

You're not going to get specific answers or specific responses to the big picture items that democrats most want Amy Coney Barrett's views on. Perhaps you can dig in a little bit on past cases and draw out a little bit more. I do think one other issue to that I've heard from both sides, that I think you can expect some questions about going forward, is more about her judicial philosophy.

Obviously, she explained it, she's talked about her ties to Scalia, and his views on things and she explained her version of that to Chairman Lindsey Graham earlier today. But I do think you're going to get some more questions about that. Obviously Democrats and Republicans differ quite sharply on how they view those issues and how judicial philosophy should operate here.

I think one thing I would close with, John, and then I'll let it get back to you, just keep an eye I think throughout the course of the day about how Democrats dig in. I mentioned it. I think the granular nature, you touched on it as well, and the granular nature of these questions is going to grow over the course of the next several hours.

And again, nobody expects them to trip her up to a point where she can't be confirmed. There's no sense at all of any cracks in Republican unity for this nominee right now. But I do think Democrats to their point that they made through the course of the day yesterday, this isn't about necessarily blocking a nomination.

They understand they don't have the tools to do that. This is about trying to bring forth the conversations about issues that they think can help them in three weeks, that they think can help them as the issue of the courts becomes more front of mind I think as it has over the course of the last couple of years.

KING: Right. And so, we're having this great Washington conversation right now as we bring the conversation back. And Democrats know they don't have the vote. So as Phil notes, they are trying to mobilize voters in the elections. You shouldn't like the president for doing this, trying to ran this down in the country, go vote, you got the president.

If you're worried about Obamacare, send a message to Republicans by voting in the election. That's the Democratic argument. Part of the question is, how does it play out in America? The country pretty evenly divided on the question of should this be done before the election or should the senate wait to see who wins the election?

And then if President Trump loses, wait and let Joe Biden make the pick. Part of that, is can Amy Coney Barrett change those numbers? Can she make a compelling case to the American people? I want everyone to listen here, remember her compelling personal story. Seven children. Two of them adopted black children. Senator Durbin asked her, had she seen the video of the death of George Floyd at police hands?

(BEGIN VIDEO CLIP)

BARRETT: As you might imagine given that, I have two black children that was very, very personal for my family. Myself 17-year-old daughter Vivian was 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 is ten. 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 the son she might have one day of that kind of brutality has been an ongoing conversation. It's a difficult one for us like it is for Americans all over the country.

(END VIDEO CLIP)

KING: Dana Bash, Senator Durbin was asking that question and questions like that to try to explore her views on race, explore her views on gun control, explore her views on other issues. But any issue aside, again, if you're trying to make the case that this person doesn't belong on the court, that's a pretty compelling story she's telling the American people.

BASH: Yes, and in fact, she went, I don't think it was during that line of questioning, but somewhere else, brown versus board of education, that was kind of the one precedent that she was OK with and was very clear in saying, that I think she called it a super precedent, that will not be changed, should not be changed.

[12:25:00] BASH: But you're right. On those issues, on others, what she tried to do because she has the personal story that allows for this, was to say, I'm not just the kind of conservative boogie woman if you will that Democrats are warning about. I'm a mom, I'm a wife, I've adopted children, I am a mother of two African-American children.

And those are very much part of who she is, which in another section, somebody was talking to her about the fact that yes, she can believe what she wants to believe about being an originalist, being looking at - all of those things.

But at the end of the day, a judge or a justice is a human who brings certain things from his or her background into the decision-making process, whether they want to admit it during a confirmation hearing or not?

KING: And it's become part of the play book. If you're appointed by a Democratic President, you quote the Republican nominees before you in saying, I can't call balls and strikes, I can't talk about specific cases, if you're appointed by a Republican President as Judge Barrett is, Nia, she kept talking about what Judge Kagan said, and Justice Ginsburg said.

And she said it's not the law of Amy, it is the law of the American people. And to trying to say, I'm just going to call like I see him. I have no preconceived notions that Democrats are course deeply suspicious about that, but she's answering the questions just as she should.

HENDERSON: Yes, she is. This is the play book we've seen from justices over these last couple of nominations. It wasn't necessarily like this in years past but because things are so partisan at this point, we have these justices or nominees come before the American people.

And essentially say they don't really have a past, that they're going to rule in the way that they rule based on those circumstances, and they don't come with any sort of preconceived notions, that they aren't essentially partisan, that it doesn't matter whether or not they were nominated by a Republican or a Democrat.

Americans know better at this point based on the past justices we've seen. And you know this is the point that Donald Trump made it very plain that the point of nominating this particular person was because of how he thinks she would view on any number of issues in the past?

That hasn't necessarily worked out well for Republicans, you think about somebody like - or you think about somebody like Roberts even who is in some ways a disappointment to some Republicans.

But in this person, in Barrett who again has likened her judicial philosophy to Justice Scalia, the late Justice Scalia, they feel pretty good and Democrats are likely nervous about what her presence will mean on the Supreme Court?

TOOBIN: John, can I--

KING: Go ahead.

TOOBIN: --make an observation about this idea that your prior views or your political views have nothing to do with your judicial views? Give me a break. I mean, this is just not believable. The idea that the fact that she signed ads against abortion rights has no influence on how she will view abortion cases, I mean, it's just ridiculous.

I mean, this is why she was chosen. As Donald Trump said over and over again, I will appoint justices to the Supreme Court who will vote to overturn Roe versus Wade. And what I think he meant by that was, he will appoint justices to the Supreme Court who will vote to overturn Roe versus Wade. That's why she's there, that's what she's going to do. And the idea that her views on abortion are some kind of mystery is, if I may be impolite, a joke.

KING: Well, we will see, 15 Senators still to come, including the Democratic Vice Presidential Nominee, Kamala Harris. The questioning will resume any minute. And we'll take you back to the hearing live when it does as all of our panelists know, an interesting afternoon, and then tomorrow, still to come.

A quick break, when we come back, we'll keep our eye on the Supreme Court confirmation hearing, we're going to get you back there as soon as it begins. But also one of the Coronavirus vaccine trials, one of the vaccine trials that president tells you will come up with a vaccine any day now, put on hold.

(COMMERCIAL BREAK)