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President Trump's Supreme Court Pick Faces Senate Committee Questions During Confirmation Hearing. Aired 2:30-3p ET

Aired October 13, 2020 - 14:30   ET

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

[14:30:00]

BARRETT: So Article III of the Constitution says that courts can hear cases or controversies. So a judge can't walk in one day and say, "I feel like," you know, "visiting the question of health care and telling people what I think." We can't even think about the law or how it would apply until litigants bring a real live case with real live parties and a real live dispute before us.

And the material that we have to decide that dispute is what comes from you. It's the statutes that you pass. We don't get to come up with the policies and see our wishes become part of the United States Code. So we react to the litigants who bring cases before us, and we apply the laws that you make.

SASSE: And what are the steps inside those Article III courts (ph) before it would ever get to a situation where the Supreme Court hears cases? What is unique about the Supreme Court?

BARRETT: So the Supreme Court obviously sits atop the federal hierarchy of the judiciary. And the Supreme Court -- so my court now, the 7th Circuit, every time someone loses in the district courts, which are the trial courts, they can appeal. And we take every single appeal that comes.

The Supreme Court works differently. The Supreme Court takes cases when it needs to. Most frequently, the reason it takes them is to resolve a division among the courts of appeal or the state supreme courts. The Supreme Court gets about 8,000 petitions a year, and they hear about 80 cases a year. So it's discretionary, what cases to take.

SASSE: So it's reactive -- it's a reactive branch, and it's after a process where there's a statute, it's been challenged, they're active cases and then it works its way up to the court. But when the justices decline to take a case, what are they saying? Are they saying, "You don't matter and you don't have a right to appeal"? What are they saying to the litigants in a case when they decline to grant cert?

BARRETT: They're not expressing any view on the merits, they're simply saying, "This isn't a case that we're going to put on our docket for certiorari because the court has obviously limited time and limited resources and so it selects the cases where it's resolving a division, for example, in the courts or some other question on which -- of national importance on which the Supreme Court needs to step in. SASSE: There has been a lot of discussion in (ph) some of the questioning earlier this morning implicitly about standing. Can you just explain what standing is so that the American people understand it?

BARRETT: Yes. So this dovetails with your question about the judiciary being a reactive branch. So as I said, the Constitution gives the courts -- the federal courts -- the power only to decide actual live cases and controversies.

So not only can't we wake up one morning and volunteer our views because the Constitution prohibits us from giving what are called "advisory opinions," we can't just dispense advice or give our views on the law, which is one reason why I'm not able to answer some of the questions being asked today.

A litigant can't get us to give an advisory opinion or elicit a view unless the litigant actually has a real case. So you, Senator Sasse, couldn't walk into court and file a lawsuit and just ask me to give my advice on whether some particular statute was constitutional. I can only decide that question if there is an actual dispute about it.

SASSE: You mentioned living constitutionalism a little bit ago. I think Chief Justice Warren had a much broader view of standing than some of the folks that have influenced your thinking and writing. Can you walk us through a little bit of the history of the court's view of standing over the last few decades?

BARRETT: So are you thinking about how broadly, like when a plaintiff has suffered an injury, or (ph) that's a concrete injury?

SASSE: Right.

BARRETT: So -- So, Senator Sasse, if you came into court and you were objecting to a particular statute and you didn't like a particular statute, you would have to actually suffer what's called a "concrete injury."

So the Supreme Court, a few terms ago in a case called "Spokeo," said that a plaintiff lacks a concrete injury if the harm isn't -- let's see, to use words the American people might understand, "palpable." Like it can't just be a procedural injury or something that didn't actually have real consequence or real effect on the litigant.

I think that the dispute about standing, you know, or (ph) the difficult thing in deciding questions of standing -- and the Spokeo opinion lays this out -- is deciding when an injury is concrete and courts can hear it, or when that injury is more abstract and designed to elicit an advisory opinion from the court.

SASSE: You said in your opening comments yesterday that it is not the responsibility of the courts to right every wrong in society. I want to ask you a question about it but first, can you just remind us what your view is there? Why did you say that?

[14:35:00] BARRETT: So I think probably what I was getting at there -- though I'd have to say, Senator Sasse, so much has happened since I gave the opening statement yesterday. Courts, because they are reactive, can't reach out to right wrongs that don't come to them in the case -- in the situation of a case or controversy.

And then even if they come to courts in the situation of a case or controversy that a court can legitimately decide, we're not free to just resolve it like Solomon in the way that we think is wisest. So we are only free to address (inaudible) and to decide cases in accordance with democratically elected law. So the policy making is yours to do, and it is only if you have enacted policies that enable us to right a wrong, that we can do so.

SASSE: So you still said though that you view it as some of your responsibility on the Seventh Circuit to write every opinion, every judgment from the standpoint of the losing party. Explain to us why you take the perspective of wanting the losing party to understand the law and the argument.

BARRETT: So I just write the opinion as I would write the opinion. And then after I write the opinion, I read it from the perspective of a losing party because I want to make sure that like I said earlier, it's a check on me to make sure that if I try to put my emotions or my preferences on the other side, then I can see that it's been a balance just strictly driven by legal analysis. I also want to make sure that the language in it is very respectful to the party who will ultimately be disappointed. I don't know, is that responsive?

SASSE: Yes, because why I want to ask this is because I am in my fifth year here -- little over five years and am on my fourth year on this committee, and the pretty much. you're the third Supreme Court nominee to come before the committee during that time, and we've had dozens of appellate court nominees.

And I've been amazed how many times the argument is American people be really, really scared the person sitting before us, obviously hates people and wants them what sick people to die and not have healthcare coverage. That -- that's sort of an argument that's routine around. It's been focus grouped obviously as a good way to demonize nominees to the court and hopefully drive outcomes in elections I guess.

I don't understand it. I think it's terribly destructive of the (inaudible). And yet I think about it from the standpoint of thoughtful, well-meaning Nebraska Democrats who hear that and they know I have a different policy view than they might on getting deportability in healthcare so people can get their health insurance across job and geographic change. Because that's actually what is driving uninsurance in America over the last few decades.

It's not primarily health status, it's not primarily pre-existing conditions or socioeconomic -- the number one driver of uninsurance in American public life is that we change jobs a lot more frequently than we used to. And by the (ph) different policy solution of how we would get deportability in healthcare than a lot of my Democratic colleagues. But those are policy disputes about a modern economy where people move around a lot, both geographically and in terms of employer-sponsored health insurance relationships.

Those contracts are not really the things that a nominee coming before the court is supposed to opine on because I don't have any idea what your views are in healthcare, but I know that it's not really the job of the judge to reflect on those things. And so I want to be sure that folks who hear this hearing and at the end of the process, they can have trust that you're not a person who really wishes secretly you could be the queen of all healthcare and decide all these issues.

And so when you write your opinion, it seems to me that one of the really humble things you're doing is you are saying, in every case that has come before me on the Seventh Circuit, I want to write this opinion from the standpoint of the losing party to understand what was the question before the court today and how did the court rule on that specific narrow thing.

Because ultimately, I think you would believe, given your jurisprudential tradition and given your view of judicial modesty and humility in your Scalia mentorship, my guess is there are times when you rule in cases where you go home at night and you take off your robe and you think the outcome is not the outcome you wish had been the case, but it wasn't your job to ultimately decide all policy American life, it was to decide the specific question before you, and it seems to me, the (ph) humble, empathetic way that you write those opinions is really important.

Is also -- it should be in the interest of public trust and American people who might listen to a lot of the demagoguery that implies that really you're just secretly a policy actor, it should be pretty comforting to them that except for probably Justice Breyer, you've written more than I think, anybody who's currently on the court. So people can actually know your jurisprudential views and how you're going to approach cases when you get on the court because you've written a ton.

[14:40:00]

There's a reason why the Notre Dame faculty, regardless of their policy positions, wrote a letter to this committee universally recommending you. There's a reason why year after year on the Notre Dame Law faculty, you're Professor of the Year because students regardless of their policy views, thought you were really good at explaining what the job of the judge is and what the purpose of article 3 in our constitutional system is.

And as somebody worries a lot about institutional trust and a lot of the attacks that we see on the court, a lot of the attempts we see in this language about potentially court packing, if we would go to 11 or 13 or 15 or Venezuelan style, 47 person court over the next couple of election cycles, that undermining, that delegitimizing of the courts should have as an anecdote, the fact that you have written a ton about what you think the job of the judge is, and people can actually understand it.

And I would hope that that's some of what this hearing would try to unpack. I am nearly out of time and I think the chairman is going to take away my -- my slot, so I want to ask one final thing. Tell us about the Scalia-Ginsberg friendship and the -- the impacted it made on you.

BARRETT: So Justice Scalia famously, when the vacancy came up, I think it was Justice White's seat that Justice Ginsberg filled, that when the vacancy came open during the Clinton administration, justice Scalia recommended her, even though they had been together on the D.C. circuit, that's where they got to know each other. And he knew that she had a different jurisprudential approach.

And you know, (inaudible) said in the weeks since Justice Ginsberg died, about that friendship, because I think it speaks so well to both of their characters, that despite the fact that they had such great differences and they could fight with the pen, they -- when they were socializing, when they were outside of the opinion writing world, they had respect and affection for one another.

And that's how I've tried to live my life with -- you know, I have friends who disagree (inaudible) about all kinds of things, but I think that it is dehumanizing if we reduce people to the political or policy differences that we might have with one another.

SASSE: Thank you, and congrats on being half done.

GRAHAM: For the record, I really enjoyed listening to you, Senator Sasse. I think you make a lot of sense and you explained the system very well. You don't have to be a lawyer to understand what the law is all about. I think you get it very much so. Senator Coons.

COONS: Thank you Mr. Chairman. Thank you Judge Barrett to you and your family, welcome. I guess Im on the downside, if you're halfway through.

(LAUGHTER)

If I might just by opening, Mr. Chairman, I'll submit two letters for the record, if I might; one from the SEIU on behalf of the 2 million members of the Service Employees International Union, and one on behalf of the National Constellation of Disability Rights Group...

GRAHAM: Without objection.

COONS: ...concern. So Judge Barrett, if I might, the calendar behind me makes clear, something about the contexts that we're in. Because I think folks watching this at home, despite the wonderful efforts that a number my colleagues have made to make this accessible, may have difficulty understanding exactly why we're here and why under the circumstances and why we keep bringing up the Affordable Care Act. So let me try to walk that through. These aren't normal times, as you all know, most of us are wearing masks. There are a number of members of this committee and the Senate who have been infected by COVID, as our President has, and that's resulted in the Senate being closed this week and our not being able to proceed.

We're in the middle of a pandemic and we are just three weeks from an election, a presidential election in which folks are voting in more than 40 states, millions of votes have already been cast, and just a week after that election, the Supreme Court's going to hear a case that could take away healthcare protections for more than half of all Americans.

So this is not an abstract academic argument, it's one that will have real life consequences. Destroying the essential protections of the Affordable Care Act, which was enacted just more than a decade ago, would have a real impact on a majority of all Americans.

It prevents insurance companies from discriminating against the more than 100 million Americans with pre-existing conditions, like diabetes or heart disease, it dramatically expanded Medicaid and it provides coverage for kids on their parents insurance, up to the age of 26 -- I should say young adults.

And perhaps most importantly, since a lot of what we've been talking about is the legacy of Justice Ginsburg and her lifelong commitment to gender equity, it also prevents insurance companies -- the Affordable Care Act does -- from discriminating against women just for being women. [14:45:00]

It may be hard to imagine now, but more than a decade ago before the ACA, pregnancy was treated as a pre-existing condition and women were routinely charged more than men, just because insurance companies could.

So President Trump -- he said over and over again that he is determined to repeal the Affordable Care Act, that he is determined to overthrow it, and there's two things all of us are waiting for. One is his detailed health plan, the other is his taxes, and I don't expect either one of them in the next three weeks.

The President tried to do it here in Congress. In fact, I think by one count, my colleagues have voted 70 times to overturn the ACA, and many in this chamber, many members of this committee, members like senators Cornyn and -- and Lee and others, have filed amicus briefs before the Supreme Court, asking for the law to be struck down.

So now on the eve of the election, I believe President Trump is making a last gap attempt to get the Supreme Court to do it for him. He can't do it through the democratic process, he can't do it administratively, he's going to try and do it with one more challenge.

And as you well know, Judge, it was upheld eight years ago in a five- to-four decision, where Chief Justice Roberts wrote a critical, decisive piece of the majority opinion, but Justice Scalia, for whom you clerked, your mentor, whose broad philosophy you embrace, dissented. He thought it was unconstitutional and voted to strike down the entirety of the law.

You wrote an article in Constitutional Commentary in 2017 in which you were quite critical of Chief Justice Roberts' decision, and so I want to ask you about that article, not as a matter of debating abstract academic principles but because I believe the outcome in this case a week after the election may hang in the balance. You wrote in that article, and I quote, "in NFIB v Sebelius, the case that upheld the ACA against a constitutional challenge, Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute."

I think those are fighting words, as an originalist and a texturalist. You were referring to Chief Justice Roberts' ruling that the individual mandate in the ACA is constitutional under Congress' taxing powers, a ruling essential to upholding the law and protecting the healthcare of a majority of Americans.

So just, if you could, do you think that Chief Justice's ruling upholding the ACA was implausible and unsound?

BARRETT: Well Senator Coons, what I said in that article, which was a book review of someone else's book, was that the statutory interpretation, as I said earlier, as Chief Justice Roberts' own opinion said, was the less natural reading of the mandate, construing it as a tax rather than a penalty, that the statutory interpretation seems, as you said, stretched beyond its plausible meaning.

But NFIB v Sebelius turned on the constitutional question -- that was -- the statutory interpretation was the threshold question -- and the constitutional question was not something that I ever opined on. And the case next week -- or the case that's coming down the pike in a few weeks, California v Texas, I -- I wouldn't say they're fighting words from the article that you read be -- read for me because the California v Texas case involves a very different issue, this issue of severability, and for those to be fighting words, I think you would have to assume that my, you know, critique of the reasoning reflects a hostility to the act that would cause me to approach a case involving the ACA with hostility and looking for a way to take it down, to deprive people of their coverage under the ACA because I didn't like it, but I can promise you that that is not my view, it's not my approach to the law, I have no hostility to the ACA or any other law and that I will faithfully apply the law and nothing that I've said with respect to the ACA -- in print, in my law review articles -- actually bears on the severability questions. So it's not indicative of how I might approach that question.

COONS: Let me go back to what I perhaps too jokingly referred to as "fighting words." You're both texturalists, you're both from the same general school of constitutional methodology, correct?

BARRETT: You mean Justice Scalia and me?

COONS: And Chief Justice Roberts.

BARRETT: I'm not actually sure that Chief Justice Roberts has ever identified himself as a texturalist.

COON: So to that point, in this article three years ago, you -- you chastised Chief Justice Roberts for not being a texturalist. You said "he has not proven himself to be a texturalist and has been willing to depart from ostensibly clear text."

[14:50:00]

And so you said in this article, and I'm quoting you, "it is illegitimate for the court to distort either the Constitution or a statute to achieve what it deems a preferable result." So this was the sort of outcomes-oriented judicial crafting that has often been sharply criticized by your mentor, Justice Scalia, when criticizing the sort of living constitutionalists, and as I read this, you are saying to Chief Justice Roberts "you're no texturalist, you have overreached, you have delivered an implausible conclusion and frankly I disagree with your upholding the constitutionality of this statute."

That seems to me, again, as a texturalist here, a plain reading of your own writing.

BARRETT: Well Senator Coons, I want to make very, very clear -- I think this is -- maybe came up with Senator Klobuchar -- that I was not attacking or, you know, chastising Chief Justice Roberts at all, for whom I have the greatest respect.

I think this passage that you're talking about in this book review on Constitutional Commentary was maybe a couple of paragraphs, maybe even one paragraph at the end, because it was a comment on Randy Barnett's book and -- and a lot of his book dealt with the NFIB v Sebelius, as -- as an example, so I was responding to that.

And the sentence that you read me, about "it's illegitimate for a court to twist language in pursuit of a policy goal," that is what I think. That's what I was telling Senator Sasse. I mean, I -- I don't think it is the job of courts to pursue policy goals that the text that you enact doesn't support.

COONS: So to be clear, you're -- you're specifically accusing the Chief Justice -- or you're chastising, might be the better word -- the Chief Justice of distorting the statute and of upholding it when it should have been struck down.

BARRETT: No, I' not -- I was not, I said I was not chastising. All I was doing was expressing some -- and I mean, as I've said several times, it's how the chief justice themselves characterize it. It's not the most nature reading of that language. And all I was doing -

COONS: If I might, Your Honor, I don't think the chief justice would agree with that characterization. He didn't describe his own opinion as not plausible.

BARRETT: He said "less natural".

COONS: Less natural.

BARRETT: And I thought is was implausible.

COONS: But not unsound?

BARRETT: So, Senator Coons, I certainly would not and did not criticize or chastise the chief justice or impugn his integrity It is true that Chief Justice Roberts and Justice Scalia took different approaches to the text in the Affordable Care Act case which is something that's widely acknowledged.

COONS: I'm simply trying to make clear that I think you're writing here in 2017 and constitutional commentary; yes the majority of it is a book review about a book that centrally talks about NFIB versus Sebelius and methodological questions. But near the end you are, I think, unmistakably clear in saying "I disagree with the chief justice's ruling upholding the Affordable Care Act and I deem it unplausable and unsound".

BARRETT: Senator, as an academic I did express a critique and I -- you've quoted the language, you've pulled out those few sentences at the end. I guess I'm a little uncertain what it indicates because, as I've said, I have no hostility to the ACA and if a case came up before me presenting a different question of the ACA I would approach it with no bias or hostility.

I also have said at earlier points in this hearing that the exercise of being a commentary, an academic is much different than the enterprise of judging and I didn't have to sit in Chief Justice Roberts' seat or Justice Scalia's seat when NFIB versus Sebelius was decided.

COONS: But you will if we follow the timeline laid out by my colleagues you will sit in former Justice Ginsberg's seat. And you will sit as a member of the court deciding a case that is very similar to the previous in which the central issue before the court, believe it or not, somehow will be the constitutionality of the mandate that's in some ways been the lynch pin of it's being upheld previously in NFIB versus Sebelius that was the sort of key point. Was that at the end of the day there were five justices who for different reasons concluded that they could uphold it in the case of the chief justice as a legitimate exercise of the taxing power.

You wrote and this is the next sentence "that Chief Justice Roberts, if he had treated the payment bowed (ph) under the mandate as the statute did as a penalty he would have had to invalidate". So, I think you're unmistakably criticizing this decision to uphold the Affordable Care Act in a case that will be before you as a newly seated member of the Supreme Court if the majority continues with this race towards your confirmation. It is the nerve center of the case.

It -- it -- the entire future of the Affordable Care Act, I think hinges on this question or whether or not you share a view with the four who were in the minority at the time, that this is something that cannot be upheld under any plausible reading of the statute.

[14:55:00]

Let me move on, if I might, Judge Barrett, you're not the only person who's criticized Chief Justice Roberts for his decision to uphold the ACA. President Trump criticized him for it sharply and repeatedly. Soon after the NFIB decision first came out in 2012 he tweeted, "That Justice Roberts turned on his principles with irrational reasoning in order to get loving press." And then later "Congratulations to John Roberts for making Americans hate the Supreme Court because of his B.S." A few years later while running for president then candidate Trump said on Twitter and I believe my colleague put this up earlier, "If I win the presidency my judicial appointments will do the right thing unlike Bush's appointee, John Roberts, on Obamacare." And as recently as just two months ago, Vice President Pence described Chief Justice Roberts as and I'm quoting "a disappointment to conservatives because of the Obamacare decision".

In upholding the ACA the chief justice was the one justice appointed by a republican president who went against the political wishes of the party that appointed him. Why did you choose to single him out for criticism in that constitutional commentary article?

BARRETT: Well, Senator Coons, I was writing about the majority opinion and Chief Justice Roberts was the author of the opinion. So I was simply discussion what the five justice majority adopted as its reasoning. And I'd like to emphasize again that I was not attacking Chief Justice Roberts or impugning his character or anything of that sort. It was an academic critique. And I want to emphasize, just given this line of questions that you're asking that I am standing before the committee today saying that I have the integrity to act consistently with my oath and apply the law as the law.

To approach the ACA and every other statute without bias and I've not made any committees or deals or anything like that. I'm not here on a mission to destroy the Affordable Care Act. I'm just here to apply the law and adhere to the rule of law.

COONS: And I -- look I think it is important that folks watching understand that I believe your views are sincere and earnestly held. And I am not trying to suggest that there was some secret deal between you and President Trump. When you told me that when we spoke a week ago I have had no conversations about these cases with the president or his legal team; I believe you.

I think you are a person who earnestly means that. And I do think it's important that you keep repeating that. But we cannot ignore the larger context that sits outside your nomination and this rushed process. I'm sure you have no ill will toward the chief justice and meant no disrespect to him as an individual. We talked repeatedly about the friendship between Justice Scalia and Justice Ginsberg. I was long inspired by the friendship between Senator Biden and Senator McCain and they fought hammer and tongs, tooth and nail disagreed with each other on foreign policy day in and day out.

But then could still also spend time together with each other's families and respect each other afterwards. And to the point my colleague from Nebraska has made about civics versus politics. It is important for us to try and sustain these institutions that hold us together.

BARRETT: And you and Senator Flake I think are another good example of that.

COONS: In deed. As you well know we came to Notre Dame Law School just over a year ago to talk about working together even across significant differences. But the broader context that Senator Whitehouse went through in detail was as you are expressing opinions in an academic journal there is literally an army of lobbyists and lawyers and people, donors and activists who funneling new judges into our courts. And I have sat here for four years and watched a whole procession of judges -- where without going on about this too much, you know a dozen have been deemed unqualified to serve. This is not a comment on you. But the speed and the process and the disrespect for some of the critical traditions of this body in terms of the blue slip and who gets nominated and why has made it harder and harder to see the independence of the judicial branch.

And in this piece that you wrote in 2017, you made, I think, your position with regards to the chief justice and his opinion, clear. Let me, if I could, put up another poster that may make this a little sharper in a way, that is, the political branch is not the judicial branch.

[15:00:00]