To the stories that you have told, including the story of veronicas family. Very moving. If i were a justice, the commitment i would make to you and to all people affected by follows is that i would the law as you enacted it, and i have no agenda. I would not be coming in with any agenda. I would do equal justice under the law for all, and not try to force or disrupt in any way the quality choices that you and your colleagues have adopted. Sen. Hirono so are you saying that the impact of the Affordable Care act on the millions of people who rely upon it, that you would deem to be policy considerations that we should address . Sen. Hirono senator, i think that you choose the law and you have structured the Affordable Care act. You set the policies. And i think when a court has to interpret those statutes or decide how it applies in a Certain Circumstance, the court looks to traditional legal materials, looks to the briefs, listens to the real world impacts on the litigants before the court arguing the case, because every case affects real litigants, real people. I said in my Opening Statement yesterday that when you pass statutes, they are often named for the cosponsors of the bill, but cases decided by all courts are typically named either parties. They affect real people. Sen. Hirono judge barrett, so are you saying all of the stories we brought forward yesterday and the millions of people who are relying on the Affordable Care act can rely upon you, that those impacts would be considered by you, that you would consider those to be legal arguments, because when you say that you are going to law,decisions based on the the the reallife stories that we have been talking about, you would consider those to be part of the law . Judge barrett senator, every case that comes before a court as i was saying earlier, no case comes before a court unless it involves reallife people with a reallife dispute. It is that the job of a judge to take into account the realworld consequences of the parties before it. Sen. Hirono does that mean you would agree with Justice Ginsburg that the court should be taking into consideration the reallife effect of the decisions that they make . She wrote a number of dissents saying that the majority did not consider the realworld impacts of their decisions. So are you aligning yourself with Justice Ginsburg in terms of what you would consider reallife impacts and the effect it would have on your decision regarding the law . Note barrett senator, i do know the particular context in which Justice Ginsburg was describing that. I think what i am trying to align myself with is the law and i will take into account all factors, including realworld impacts, when the law makes them relevant, as it clearly does in the doctrine. Sen. Hirono i will get your in a moment. Edent i will give you a reallife example of Justice Ginsburg her. Lilly ledbetter worked at a goodyear plant and as a manager, she was paid less than all of her male counterparts. When she eventually realized this inequality, she sued for discrimination and the jury agreed, but the Supreme Court kicked her claim out of the court for being too late. The conservative majority, including your mentor, Justice Scalia, included a time limit to mean that she would have had to file her claim within 180 days of when her salary was decided, instead of excepting the common sense approach of viewing her paychecks as an ongoing part of paid his termination. Justice ginsburg strongly disagreed with her conservative colleagues approach. She wrote that the many challenges women face, including salariescopies keep confidential ph she said that the court is not 2018,ther case in employees who had been illegally underpaid joined together to seek backpay in court. The block this effort, their employers forced them to sign an arbitration agreement prohibiting collective action. They actually have to sign these arbitration agreements in order to even have a job, keep their job. So the Supreme Courts conservative majority sided with override toto Worker Protections laws instead of recognizing that the Worker Protection laws fall sensibly within the exceptions in the arbitration law, meaning about the work our protections laws should prevail. Again, Justice Ginsburg strongly disagreed with the majoritys approach, pointing out that blanche e blocking joint lawsuits would deter most individuals from seeking individual unpaid wage claims because of the fear of retaliation. She warned the majoritys decision would result in hurting vulnerable lowwage workers. Those are the kind of reallife impacts. The reality of women who are not paid the same as their male sixterparts because of discrimination happening that she has no way of finding out about or of workers forced to sign an arbitration clause that overrides other Worker Protection laws. Do you think Justice Ginsburg was wrong to consider realworld impacts in her decisionmaking . Judge barrett senator, you know, both the case, lilly systems ared epic part of the court, and i cannot really comment or grade what prior precedent would say, how i would have decided them. Sen. Hirono the precedents of the court do not take into consideration their realworld factors at play here. In fact, in the case of epic systems, the court sided with the corporation, as opposed to the workers who were trying to remedy a wrong. And in lilly ledbetter, she was totally out in the cold. Again, the court settled precedent, but it was a precedent not based on reallife impact. So you are sitting here and telling me you would follow the law after all, the law, for example the Affordable Care act, that law embodies the policy that says we want as many people as possible to be covered under insurance, and if the is struck down, that policy, that law would be struck down. So i know there is some discussion about some distinction that you make about policy versus the law. I find that distinction to be a fiction. Because every law, or most laws we pass them are supposed to have realworld impacts. Otherwise, why should we pass the law . So the fact that you are not that. O let me rephrase i think it is pretty clear. You do consider Justice Scalia to be your mentor, that your judicial philosophy is in alignment with him. I think we all acknowledge that Justice Scalia and Justice Ginsburg were at pretty much opposite ends of the spectrum, so since Justice Ginsburg made it a policy, her approach was to look at the realworld impact, Justice Scalias was not. So i would say, when it comes to the Affordable Care act, the realworld policy considerations will not be taken into consideration by the conservative judges would mean that 23 Million People could lose their health care. That 100 33 million americans with preexisting conditions could lose critical protections for their health care. And more than 7 million americans who have tested positive for covid19 would probably be added to the group of people with existing conditions, and millions of americans would once again face lifetime limits on coverage for essential services. Women wouldlion lose coverage for critical Maternity Care services. And we know black and native women are more than two times likely to die from pregnancy related complications than white women. That young adults would no longer be able to stay on their Parents Health Insurance Plan until age 26 at a time when our country is dealing with massive job losses. Have posed an you artificial distinction between policy considerations that is left up to us and following the law. Because if your criticism of Justice Roberts decision, in therding the in Affordable Care act, he would have struck down the Affordable Care act. If you followed your criticism of him in sustaining the Affordable Care act, he would have struck it down. So i would conclude that your approach is, in fact, not like that of Justice Ginsburg, who did care about what would happen. Story just tell you one of a person who will be impacted in the real world if the Affordable Care act is struck down. And i know so many of my colleagues have already established that the president expects you to strike down the Affordable Care act, and you have already established you made no such covenants, but clearly that is why this whole process is occurring, so you can be sitting on that court in time to hear the Affordable Care act in front of the Supreme Court. One of the people who will be impacted is elizabeth from texas. She moved so she thought she would have stable coverage. And all of that changed when she couldnt afford Health Insurance. She had to resort to using inhalers. Expired the aca allowed her to get Health Insurance. And jordan, who has a rare illness that would cost 500,000 per year for her medication, and if not for the Affordable Care act, she would not be able to afford it. Who can afford 500,000 a year to keep her going . And people like kimberly, who we talked about yesterday. The aca allowed her to get a mammogram, which revealed she had breast cancer. So the reallife impacts on people like elizabeth, jordan, and kimberly, where you say you will follow the law, it leaves me wondering whether all of are whatllife impacts you would call within the scope of the law that you would decide, should you be confirmed. You would be deciding on the constitutionality of the Affordable Care act november 10. By the way, you noted the issue in the Affordable Care act the other issue in the Affordable Care act is the entire constitutionality of the law, because the District Court, the issue was whether the District Court in texas was correct in deeming the entire law unconstitutional. So in fact we are facing the by the wayside. Let me move on. Asked a lot of questions about whether or not you would overturn roe v. Wade. Expect, President Trump that you would do so, because, as he said, if we put another two or three justices on the court, that will happen, meaning the reversal of roe v. Wade. In my opinion, because i am putting prolife justices on the court. A number of us have mentioned that, as far as senator hawley is concerned, where he said i will only vote for those Supreme Court nominees who have exquisitely acknowledged that roe v. Wade was wrongly decided, and there is a whole quote i have from him, but after you were nominated, senator hawley made clear that you passed this litmus test, and he said your record is awfully clear, where she meets my standard of having evidence in the record. By the way, he had noted that he started this evidence in the record not from your post nomination assurances to him. Your prior record, he said you met the standard. We usually expect justices to uphold and apply longstanding precedent. Inwas the president wrong concluding that you would vote to overturn roe v. Wade . Judge barrett senator, again, i about make any statement any case or precedent, but i will repeat what i said throughout this hearing. That i made no promises to anyone. I have no agenda. There are 598 volumes of the United States report. That is something that judges build on. Justices do not go to the court to have a book burning. Sen. Hirono i know you have reiterated that, but we are left with the positions you have already taken. So the 2006 newspaper ad you signed that said you oppose abortion on demand and defend the right to life from fertilization to natural death or com. It also said it is time to put an end to the barbaric legacy of roe v. Wade. In a speech you said what you said the roe decision permitted abortion on demand, after you said you opposed abortion on demand in 2006. What underscores my concern about your willingness to isrturn roe v. Wade, which really the expectation that the president had and which senator hawley fully expects you to do, because you have met his litmus precedent, you have argued a justices duty to follow the constitution, which is regarding your view on precedent, that she should enforce her best understanding of the constitution rather than a precedent she things clearly in conflict with it. And you said constitutional toes are the easiest overrule, because you bring your own assessment of what the constitution requires. And as you said, if the conflict withn the constitution, in your view, the precedent falls by the wayside. You indicated there are a few cases immunized from overturning, because they would not be challenged in the first place, i. E. Brown v. Board of is not one of roe those cases, because we know they are all kinds of challenges to roe basically because the states are very busy passing all of these laws that limit a womans right to an abortion. You also said, in that speech, that even if roe is not overturned, you said, without overturning roe, you explained the question is how much the freedom is the court willing to have states willing to let states have in regulating abortion. There are 14 cases right now relating to state abortion restrictions making its way through the Circuit Court, and some of these are going to land in the Supreme Court. And these 14 cases include the following resections. Six cases allow bands on abortion ranging from six cases to 24 weeks. Two involve a particular type of procedure that accounts for nearly all second trimester aortions, one case involving demand fetal remains be buried, four cases involve socalled reason bands, two cans two bands related to parental consent. There are reasons why the American Public are worried you will overturn roe or strip it of all meaning, because you have these cases that you say the open question is how far the Supreme Court will go in leading states but limits on abortion. That is why a lot of people are very concerned about your views as articulated prenomination. This morning, senator feinstein asked you a question about the 2015 caseurts obergefell v. Hodges. I was disappointed that you did not have a direct answer on whether you agreed with the majority or whether you agreed with your men sure that no such right exists in the constitution. Even though you gave no answer, i think your response spoke volumes. Not once but twice, you use the preference to describe those in the Lgbtq Community. Sexual clear preference is an offensive and outdated term. As a just that Sexual Orientation is a choice, and it is not paid Sexual Orientation is a key part of a persons identity. That Sexual Orientation is both a normal extension of human sexuality and immutable. Part of the ma joritys decision in obergefell. If it is your view that Sexual Orientation is merely a preference than the Lgbtq Community should be rightly concerned about whether you would uphold their constitutional right to. To marry. I do not think it was an accident you use the phrase sexual preference. One of the legacies of Justice Scalia is a resistance to recognizing those in the Lgbtq Community as having equal rights under our constitution. In 1996, estes scalia wrote a senting opinion defending Justice Scalia wrote a dissenting opinion wrote a dissenting opinion in lawrence v. Texas. 0 years later, in u. S. V. Supported the federal governments right to deny and he argued there was no constitutional right to samesex marriages under Justice Scalias judicial philosophy, which you have said is your own, states could openly discriminate against the Lgbtq Community, samesex couples could be denied the right to get married, and they could actually be thrown in jail if they engaged in sexual intercourse. There are an estimated 11 identify asts who a dbt q. As lgbtq. People are really afraid that if you are confirmed, you would join with other conservative members to roll back everything the Lgbtq Community has gained and push them back into the closet. Two sitting justices are already calling for obergefell to be narrowed, if not overturned. Last week, Justice Thomas issued deny ent to they accuse the courts of, justices alito and thomas, of reading a right to samesex marriage into the 14th amendment, even though that right is found nowhere in the text, and these two justices signaled that obergefell is a problem that only the court can fix. So coupled with your use of the term sexual preference, coupled with your view on justices and that a analysis ofown constitutionality should overtake or overcome precedence, if it is in conflict, so this is why so many people in the Lgbtq Community are so concerned that you would, in fact, joined the signaling that these two justices have already put out there, that obergefell will fall by the wayside. Thank you, mr. Chairman. Sen. Graham thank you. Senator ernst. Ernst thank you, mr. Chair. Judge barrett, thank you for being here with your beautiful family once again. We appreciate the support you are showing to judge barrett by being here today. Judge, i want to offer you the opportunity, at this point, is there anything from earlier today that you feel you need more time to respond to . Judge barrett thank you, senator ernst. I would like to make a quick follow on some of senator hironos comments. One, i have set a number of times during the hearing that i cannot comment or grade existing precedent, and i want to be clear that the kind the point of doing that is not to say whether i agree or disagree with implicitly not it,s not disagreeing with the point of not answering it is it is inappropriate for me to say a response. And i certainly did not mean and would never mean to use a term that would cause any offense in the Lgbtq Community. So if i did, i greatly apologize for that. I simply meant to be referring inrgefell and wrists respect to samesex marriage. Sen. Ernst thank you. It goes back to the discussion you had with the black robes. When you put that robe on, you are neutral, correct . Judge barrett yes. Sen. Ernst thank you. I wanted to go back because of the issue of coronavirus. It has come up once again in the committee room, and i want to y that point and clarifi the senate gop did bring up a relief bill in number of weeks ago, and in that hill, there was a 300 boost in weekly Unemployment Insurance benefits, there was a second pass at the Paycheck Protection Program for Small Businesses. There was 105 billion dollars for k12 schools and colleges. We have new scholarship programs. And 50 billion to help working parents find accessible childcare options. There was support for farmers and ranchers impacted iv pandemic. There was 31 billion dollars for development and distribution of vaccines, drugs, and other medical supplies, 16 billion for testing and contact tracing, there was loan forgiveness for the postal service, Liability Protections for schools and health care providers, and an expanded charitable deduction for contributions made during the pandemic. And many, many other things. It was a very, very good bill, it was what we could agree upon, but i would note that Senate Democrats did block those provisions that would have gone to help families like veronica and others in iowa that are suffering from the pandemic. Of course, our greatest sympathies to those who have been impacted all across the United States. Mr. Chairman, i would like to enter into the record three letters here for the committee and an oped, letter of support from 48 Christian Womens scholars. The second is a letter from a group of governors across the country, including our own, governor kim reynolds, supporting the nomination of judge barrett. The third is a letter from tracy levitt, who was with judge barrett while they both served on the scotus clerk class of 1998. There is also an editorial by derek mueller, a professor of , and this professor had evidencerett as his professor at notre dame law school, and he does say that he treated that she treated all students of all backgrounds with respect. Sen. Graham without objection. Sen. Ernst judge barrett, i can prolife. By youre that, judged faith, and has been apple pointed out many times by our colleagues across the aisle, that you are prolife. But once again, can we reiterate your stance as a judge . Myge barrett as a judge, which i moral beliefs am not expecting them publicly right now, because now that i am a judge, i cannot sign statements like i did that 115 years ago, but my policy views, my moral convictions, my religious beliefs do not bear on how i decide cases, nor should they. It would be in conflict with my judicial oath. Sen. Ernst and i know you consider yourself to be an originalist, as you discussed earlier with senator sasse. It seems that adhering to the naturallyt view would lead a judge to carry out her impartiality, and this takes real courage. The courage you have displayed lead to a coalition of groups a coalitiono send letter supporting your nomination. I would like to support this to the record. I know this will make a number of ambers on the committee very squeamish, because they are a prolife organization. But, with this in mind, i want to take a moment to read part of this letter. Has proven herself to handle disputes impartially, approaching cases as a textualist and originalist who loves the constitution. She is a jurist who rightly leaves politics to politicians and legislating to legislators. Quite apart from whatever policy views she may have on the matter, judge barrett reasons to a proper result in each case before her. As a federal appellate dodge appropriately following controlling precedent, in 2019, she joined a Panel Decision upholding a law creating a buffer zone around abortion facilities. Or bubble zone case being referred to is price versus the city of chicago. Judge barrett, can you please give us an overview of the City Ordinance that was challenged here and asked lane how precedent and explain how precedent established by the Supreme Court influenced your reasoning of the case . Judge barrett i was on a panel, there was a challenge to a bubble zone ordinance, which it limitedans where abortion protesters could go to do sidewalk counseling or , the activities they desired to undertake in the expression of speech outside the Abortion Clinics. The Supreme Court has a case, and that case is that such bubble zones, especially because this one in chicago was nearly identical, as i recall, with the one at stake, said that they did not violate the first amendment, so our panel, as we are bound by panelrecedent, our applied that precedent. My duty as a judge was to follow the governing law, and in that case, it was hill. Sen. Ernst thank you for that clarification for it i think it was important to point that out, because in that case, you think thatdent, it did favor Abortion Clinic, is that correct . Judge barrett that is correct. Sen. Ernst thank you very much. I would like to submit this to the record. Thank you. Now turning to a topic of Agency Rulemaking really sexy topic. [laughter] not something we have talked about as of yet. But as i mentioned yesterday, when Congress Makes laws that overstep the constitution, it can be felt all across the state of iowa, whether it is in the streets of Council Bluffs in the farm fields in clinton county, but congress is not the only body capable of overstep. Agencies can be just as guilty of this, as we have seen in iowa. In 2018, as a judge on the seventh circuit, you helped decide a clean water act case, specifically Orchard Hill Building Company v. Army corps of engineers. The decision found that the federal government did not provide enough evidence to justify its decision to deem 13 acres of illinois wetlands as a water of the u. S. I am very encouraged by how you approached this decision. Farmers in iowa are also encouraged by this development. I believe then, as i do now, that the Obama Administrations clean water rule was unconstitutional, but i also want to talk to you about Agency Rulemaking that i believe was constitutional, which is that theed in a case 10th Circuit Court has recently ruled on, specifically Renewable Fuels association v. Epa. At issue in this case were three exemptions the epa granted to Oil Companies allowing them to avoid their obligations to blend renewable fuel under the clean air acts renewable fuel standard. These oil refinery exemptions, which were not disclosed to the public, were challenged by renewable fuel producers, who said they only found out about the waivers because of investigative news reports. The 10th circuit concluded, in this case, that the Renewable Fuels producers were injured by and thus hadptions standing to sue. The court also found that the epa exceeded its Statutory Authority in granting those petitions, because the agency may only extend previously existing waivers. In the case of these three refiners, there was nothing to extend, because they had let their exemptions lapse. In other words, the three refineries had not received continuously extended exemptions in the years preceding their petitions, as required by the statute. But in the wake of this decision, small refineries flooded the epa with 67 petitions for retroactive waivers, some dating back as far as 2011, in an attempt to go back in time and establish a chain of continuously extended exemptions. Also Oil Companies have appealed to the 10th Circuit Decision to the Supreme Court. So while i will not ask you to and what is of this going on, the problem here, bottom line, is that the epa was not following the law. They took the law that Congress Passed, they twisted it, and interpreted for the benefit of oil producers, and that harmed our iowa farmers. Speak, again, you cannot on how you would rule on these cases, especially those that could be pending before the Supreme Court, but tell me how do agencies, how should they interpret the laws that are passed by congress . Judge barrett well i think the reviewing agency actulness is governed in an that governs the way in which agencies can do their business. There is also a document called chevron, named after a case, and many times, if we are talking about a chevron issue, we are talking about an issue of statutory interpretation. And when it Court Reviews whether an agency has exceeded its lawful authority, it goes to the statute that you, in congress, an act, and interprets that statute, looks at the text, and tries to tell whether you the given the agency, given epa, in your example, leeway to adopt policies, and that leeway would be present if you had ambiguity in the statute that left the decision to the agency, but if the agency goes further than the text that the statute permits, it is the role of the court to say that that action was in conflict with the statute, and therefore legal. Sen. Ernst what happens, then, if there is an actual question on the intent of the law . Judge barrett well, statute, in this context, in the context of a chevrontype challenge to an agencys interpretation, you would interpret the statute in the same way you would any statute. My own approach to it would be textualism. So in my approach to language, the intent of the statute is best expressed through the words, so looking at what the words what would communicate to a skilled user of the language. Sen. Ernst i appreciate it. We do have a little bit of time remaining. Again, i want to thank you, i want to thank your family for lending their support to you through this process. I do have to say your temperament throughout the entire hearing has been truly commendable, so thank you so much. I look forward to working with you further. With that, mr. Chair, i will reserve my time. Sen. Graham thank you. Judge, are you ok to do two more . Senator booker, senator crapo, then we will take a 20 minute or so break to grab a bite to eat and finish up. Sen. Booker thank you. I spoke yesterday, and i appreciate the attention you gave me talking about how this is not a normal time, and i want cogently as that as i can, because this is Something Like we have never seen before in the history of the United States. We are not just days away from election day, but people are actually voting right now. Close to one Million People in my state have already voted, and about 10 Million People have voted nationally. The only other time a Supreme Court nomination hearing happened in this close to an election was, as you probably know, under president , who offer in nomination before the election. It is probably not normal, also, because people are already speaking in this election, and it seems like we are rushing through this process, when many of my colleagues in this Committee Said, just four years ago, that we should not proceed to fill a vacancy that opened 269 days before an election. In the words of some of my colleagues, including the chairman of a was to use our words against us, we would not do exactly what we are doing right now. It is also not normal, clearly, because we are in the middle of a pandemic, and we have tens of thousands of new covid infections every single day, widespread Food Insecurity like we have notn seen these kind of food lines in my lifetime. People across the country are struggling. Unfortunately, we see we are, right now, not dealing with this crisis. We are instead literally having close the senate, virtually, and the only proceedings allowed to go forward are not issues of the struggling. It is not normal that we have a president who has repeatedly attacked the legitimacy of our institutions. So much so and ive never seen nothing like this in my lifetime that his former cabinet members all talk about the danger he represents to the country we all love. Probably one of the most respect the person on both sides of the aisle, general mattis, went as far as to say that donald trump is a danger to our democracy. We are at a time that the legitimacy of our institutions are at stake. And it is not normal that the president would further cast a shadow over your nomination, as well as the independent of the court, by saying he would only nominate justices who would tear down roe v. Wade, aca. This not normal at midst all. In we have a president who cannot, himself to the peaceful transfer of power. In the light of that abnormality, most americans think we should wait on your nomination. Today, and i appreciate you not following the news, but 90 of your fellow faculty members from notre dame wrote an open letter calling on you, for the sake of our democracy they did not speak to whether you are right or left or your judicial philosophy or qualifications they wrote an impassioned letter for the sake of our democracy, publicly writing that you withdraw from this nomination process and have it be halted until after the november election. This is not normal. And again, the overwhelming majority of americans want to wait, but my colleagues here are not listening. And so i will ask you some questions that come if you had told me five years ago, would be questions asked to a Supreme Court nomination hearing, i would have thought they would not be possible. But unfortunately, i think they are necessary to ask you, and i hope you will give me direct answers. The first 1 you have already spoken towards issues of racism, how you deploy it, but i want to just ask you very simply, and i imagine you will give me a short, resolute answer, but you condemn white supremacy, correct . Judge barrett yes. Sen. Booker thank you. I am glad to see you said that. I wish our president would say that so resolutely and unequivocally as well. We are at a time where americans are literally fearful because our president cannot do that in the resolute manner in which you did. I am sorry that question even had to be asked at this time. Here is another one. Do you believe that every president should make a commitment, unequivocally and resolutely, to the peaceful transfer of power . Judge barrett well, senator, me, to be, to pulling me in to this question of whether the president said that he would not peacefully to the except that this is a political controversy right now, as a judge, i do not want to express a view on sen. Booker i appreciate what you have set about affecting our Founding Fathers. It is remarkable we are in a place right now that this is becoming a question and a topic. What i im asking you in light of our Founding Fathers, in light of our traditions, in light of everyone who has sworn in both that they swear to preserve and protect and defend the constitution of the United States, im just asking you, should a president commit themselves like our Founding Fathers i think had the clear intention, like the grace that George Washington showed to the peaceful transfer of power. Is that something that president s should be able to do . Beauties ofe america from the beginning of the republic is that we have had peaceful transfers of power and that disappointed voters have accepted the new leaders that come into office and that is not true in every country and i think it is part of the genius of our constitution and the good faith and goodwill of the American People that we havent had a situation that has arisen as so many other countries where there have been. Thank you, your honor. Do you think that the president has the power to pardon himself for any past or future crimes he may have committed against the United States of america . Besenator booker, that would a legal question, that would be because additional question. In keeping with my obligation not to give previews to resolve the case, that is not one that i can answer. Senator booker i think i agree with you that it is an issue right now, but it is an issue. Our president may intend to pardon himself for future crimes or past crimes. If the president is personally responsible for several hundred Million Dollars of debt while he is in office, potentially to foreign entities, do you think he has a responsibility to disclose who his lenders are, especially given the emoluments clause . Judge barrett senator, theres litigation about the emoluments clause, i dont know where it stands, but that clearly is an issue being litigated and one present in court is not one on which i can offer an opinion. Thank you, i think it is disturbing that we are having this conversation. I think it is disturbing that we not a president that has revealed what their debts are, especially if they are to foreign nation. President s should not be able to pardon themselves for future crimes, president s should condemn white supremacy, president s should commit themselves to the peaceful transfer of power. Have seen in, you a lot of my colleagues and i put up pictures of people in this room, stories we told, and ive appreciated the way you have listened. It is not a stretch to understand why a lot of americans are free right now. All we have to do is look at the statements, actions of my republican colleagues, Republican Party platform, and the president who nominated you. And even some of your own words that you can read by my previous for thees around the of care act. President trump nominated you for this vacancy by explicitly stating the Supreme Court to overturn the Affordable Care act, but he promised that he would nominate a judge who would do the right thing and like john roberts on obamacare. The president has tried to do this legislatively, administratively, he has failed but he has promised to tear down the portable care act. Meanwhile, all of my republican colleagues on this committee except for one has voted to overturn the Affordable Care act. House and Senate Republicans have tried to do it 70 times. The one republican who did not with the attorney general who joined 20 attorney general to sued. Who you yourself said that chief Justice Roberts pushed the Affordable Care act beyond its plausible meaning in statute. Chief Justice Roberts imply that trump did not do the right thing. You have said that if you were on the court, you will hear and consider the arguments from both sides. Interestedlly very when you said that you put your family members in the shoes of litigants on both sides. Over all that youve heard and over again about the intentions to tear away the Affordable Care act, given what you have heard about the people who rely on it, given the commitment you know that President Trump said explicitly that he will only appoint a judge who would overturn the aca, is it unreasonable for people to fear putting yourself in the shoes of the people, is it unreasonable for the people who have been up here to fear that the aca would be overturned if you were confirmed to the court . I wantarrett senator, to stress to you, senator booker, as i have stressed some of your colleagues today that i am my own person, i am independent under article three and i dont take orders from the executive branch or the legislative branch. Sen booker i understand. Can i restate my question . Im not asking you as an active empathy, can you understand the fears that are exhibited by the people . The two people i put up, michelle and merrick, i dont know what their Political Party is, i dont know if they are going to vote for me. I just know that they were people who wanted their voices to be heard because they are afraid right now of what the nomination represents. All im asking, can you understand that . Judge barrett senator, i can certainly empathize with people who are struggling and i can empathize with people who lack health care. One of the things that was so striking to me when we went to get her daughter vivian from the orphanage in haiti was the lack of access to basic things like antibiotics, and it just made me appreciate the fact that we had access to health care, so i can certainly empathize with all of that. Aca,ith respect to the should i be confirmed and as i said, i would consider the issue of recusal a threshold question of law, but should i be confirmed and should i sit and hear the case, as i assure you, i would consider all the arguments on both sides and one of the important issues in that case is whether, even if the mandate has been unconstitutional since it was zero out, whether it would be consistent with the will of congress for the statutory question on a constitutional one, or whether the mandate could be severed out and the rest of the act stand. The job of every justice who looks of this case will be to look at the structure of the statute and look at the text to determine whether it was the will of congress sen booker i apologize, especially after the Good Behavior that was noted that we shouldnt be talking over each other, my time is running quickly. Just, as a guy who looks at justices, i was just asking you to express that you understand the fear that is in america right now because youve heard story after story of people who dont know if they are going to be able to afford their health care, who dont know if they will be denied insurance coverage. Im going to move on because of the short time but i was just asking you, can you understand the fear, giving a president that has said that they will put a justice on that will tear down the Affordable Care act, taking away health care for millions of americans, there is fear in our country right now. I want to move earlier to what senator durbin and you discussed, about racism in the role of courts and addressing racial justice. I was troubled that you said that racial justice, and i will quote you, how to tackle the issue of making it better, those things are policy questions, i think that is the quote. How to tackle the issue of making it better, the racial injustice, those things are policy questions. And not for the court. The federal governments own data, and i think you and i referenced this in her other conversation which i appreciate, you said you were familiar with a lot of the data about the discrimination in our criminal Justice System. The u. S. Census commission shows are more likely to charge black defendants with mandatory minimum sentences than black or white. Judge barrett im not familiar with that particular census. Sen booker does that surprise you . Mean, i dont i know, senator booker, that seems an odd thing for me to express an opinion on. Sen booker these are just facts. Judge barrett im not familiar with that study. I am aware that there is evidence and that there have been studies of implicit bias in the Justice System, so i am aware of that issue. Sen booker you are aware of evidence that there is implicit racial bias . Judge barrett i am aware that there have been studies showing that implicit bias is present in many contexts including in the criminal Justice System. Sen booker ok. Im just going to read some of these other statistics because i think they are really important and this is independent data from the u. S. Census commission of black defendants compared with similarly situated white defendants. On average, they added 10 years to sentences. You are not familiar with that study. Judge barrett i am not familiar with that study. Sen booker have such cases come for the seventh circuit . Judge barrett three strikes cases . Um, are you talking about the three strikes, the prison litigation reform act . Sen booker cases in the criminal Justice System that relate to criminal bias racial bias. Judge barrett certainly we have discrimination cases, there are title vii cases. Sen booker i would imagine so. In your research for those cases, you familiarize yourself with a lot of data on the discriminations in the system. Judge barrett we familiarize ourselves with the arguments the parties make and the information they put in the record. Submit to theties District Court. Sen booker i just want to be clear, do you believe that there is, in fact, implicit racial bias in the criminal Justice System . Yes or no question, do you believe that there is implicit racial bias in the criminal Justice System . Judge barrett senator, it would be hard to imagine the criminal Justice System as big as ours not having any implicit bias in it. Sen booker so is that a yes . Idge barrett senator, yes, think that in our large criminal Justice System, it would be inconceivable that there wasnt some implicit bias. Sen booker ok. Over the last two years, 121 of President Trump judicial nominees to federal court has said unequivocally that there is implicit racial bias within the Justice System, quite clearly. I like to turn to an opinion last year about race discrimination with the Illinois Department of transportation. The case involved an africanamerican Traffic Control officer who had been fired from the Illinois Department of transportation. This employee claims he had been subjected to hostile Work Environments and that the supervisor called him the nword. You told about the employee had failed to make the case that he had been fired in retaliation for his complaints about race discrimination. Quote, acknowledge that the nword is an egregious racial epithet, but you went on to insist that the employee couldnt win simply by proving that the nword was uttered at him and that he failed to show that his supervisors use of the nword against them altered the conditions of his employment and created a hostile or abusive working environment. And you said that even they on his own subjective experience, this black employee had no evidence that his supervisors were lashing out at him because he was black. To have torprised make this point at all, but even a staunch conservative like Justice Kavanaugh in my questioning of him spoke to the obvious harm here in a way that you dont seem to. He wrote the court of appeals case that he called the nword by a supervisor suffices by itself to establish a racially hostile Work Environment. You disagree with that. Why do you believe that the law recognizes the harm that is inflicted on a black person in this country when they are called that word by their work supervisor or anyone, for that matter, and all the history dredged up in that word . Centuries of harm. Why do you believe differently than justice capital . . Justice kavanaugh . Judge barrett that opinion does not take an opinion different than justice kavanagh, it very carefully leaves open the possibility that one use of the word would not be sufficient to make a hostile Work Environment claim. Thatat case, the evidence the plaintiffs had relied on to establish the hostile work involved he was driving the wrong way down a ramp and the next lives were used, not the nword. The nword was used after his begun,tion had already and he didnt argue under clear Supreme Court precedent, i didnt make up the development, under clear Supreme Court precedent, both are required. He didnt say that it altered the terms, that is not how he made his case and it was a unanimous decision. Sen booker forgive me if im reading this case wrong, but youre saying to me he was not planning to be in a hostile work avironment and that it is pattern that supervisor called in the nword and that does not constitute a hostile Work Environment and the way the Justice Kavanaugh said clearly that it does . Judge barrett i think you are mischaracterizing what i said with all respect. In that opinion, the evidence that he introduced to show the hostile Work Environment was the use of expletives when he drove the wrong way down. He was a safety driver for the Illinois Department of on hisrtation, and based hostile Work Environment claim on the use of expletives at him based on performance. And is what he relied upon then the termination proceedings had begun. He didnt hide the use of the nword into the evidence that he introduced for a hostile Work Environment claim and so as a panel, we were constrained to decide based on the case the plaintiff had presented before us. The panel very carefully wrote the opinion to make clear that it was possible for one use of the nword to be enough to establish a hostile Work Environment claim if it were pledged that way. Led pled that way. Sen booker you were not a part of the initial panel, but you did have the opportunity to vote on whether the case was before the entire court. You had an opportunity to affirm the bedrock principle enshrined in brown v. Board of education, to say that separate is inherently unequal. But you voted no, you didnt think the full court to examine this deliberate segregation of employees by race. But judges on the court disagreed with you. In fact, three judges explained we know that the liberal deliberate racial segregation has an adverse effect on the people subject to it. On one of the essential teachings of brown versus the board of education which i know youre familiar with, is that idea of separate being inherently unequal. Why do you think that the separate but equal facilities were lawful, or why didnt you see this as a practice that was worthy of closer scrutiny . Judge barrett senator, as i said earlier, i did not make a merits decision on that case and i was not on the initial panel. The calculation is different than a merits position. Decision reaching any about whether title vii applied to that situation or not. Federal rules and procedure governs en banc proceedings set that standards and this case would create an intercircuit conflict. Idnt think it met federal all my vote means is that i did not feel like it satisfied the elevated High Standard for review, not that i thought it was correct. Sen booker right, but three judges disagree with you. Judges appointed by republicans and democratic president s. Found that case about separate but equal really compelling. You had the opportunity to join them, but you didnt. You referred earlier to the problem of implicit racial bias in our system. Despite the color of their skin, people can get a hearing, people can get justice. This denial seems to me that you disagreed with the prioritization, at least, of your three college. Ofge barrett senator, eight my colleagues chose not to take the case en banc in the process is a different one than the meritbased process. To know whether it would cut off the same way, i would have had to participate in it and hear the arguments. Sen booker so the three justices were wrong and you disagree with your colleagues. Judge barrett the three judges who dissented, my three colleagues whom i respect very much, thought that it met the standard for en banc review. That is a different question than the merits, so i did disagree with them. Group of aa colleague that decided that maybe that would be an issue we could take up in the future, but not to disturb the Panel Decision then. That is not a merits determination. Sen booker thank you, your honor. Moving quickly. Five years ago, the Supreme Court ruled that the constitution could protect the rights of samesex couples to marry. This was the case which has been discussed today. Equal dignity in the eyes of the law, hundreds of thousands of couples have built their lives on this decision. I have married some of them myself. The courts fill that idea of equal justice under the law. Now, samesex marriage is legal. Weve seen efforts to try to undermine that decision. Out legalnsburg ruled rules that would create two kinds of marriage, full marriage and skim milk marriage. I firmly believe that our laws should not allow discrimination against people on the basis of who they are. I have a number of questions on this topic, but i wanted to offer you a further opportunity to address the issue that i dont think you got to fully address that my colleague brought up. Term sexual preference earlier today rather than Sexual Orientation. Is there a difference, and what is it . Judge barrett using that word i did not mean to imply that i ofnk that it is not a matter that it is not an immutable characteristic, i honestly did not mean any offense or to make a statement by that. Sen booker but you understand about that immutable characteristic. In other words, that ones sexuality is not a preference, it is who they are. Is that what youre saying . Judge barrett im saying i was not trying to make any comments on it. I fully respect the rights of the lgbt community. It follows an important precedent of the court. I reject any kind of discrimination on any sort of basis. Sen booker what about your two colleagues forgive me. Thomas whoalito and have said that the court has created a problem that only it can fix . They clearly dont see that as a precedent worth following. Judge barrett i said over a felt is a precedent, it is an important precedent, as you pointed out. There are relying interests as to why justices alito and thomas called for an overruling in the recent opinion that the issue. I cant really speak to it. Sen booker they called it a problem, do you know what they are offering to . Judge barrett i dont know what justices thomas and alito were thinking, you would have to ask them. Sen booker we are now seeing cases where americans are being denied equal access. One thing that the couple in arizona was together for 43 years, got married, but one of them died six months later. Surviving spouses being denied benefits because they were not nearly long enough after 43 years together. The rule ofolate equal treatment that the Supreme Court has laid down . Could you repeat the facts of this . Were togetherey for 43 years, the law changed and allow them to marry. They aresoon after and being denied Survivor Benefits because they were not married long enough to get the law that denied them in quality. Adge barrett that would be legal question that would have to be decided in the context of a real case. The case recognizes the full right of samesex couples to marry. Sen booker but there are some president s. Can a hairdresser refused to serve interracial couples wedding because they disapprove of interracial marriages . Judge barrett versus virginia follows directly from brown and it makes unconstitutional any attempt to forbid interracial marriage. Sen booker could they refuse to serve a black couples letting . Judge barrett could a baker or vii prohibitsitle any sort of discrimination on the basis of race. Places of public accommodation. Sen booker how about interfaith wedding . Judge barrett i feel like you are taking me down a road of hypotheticals that is going to get me into trouble here because as you know, i cant opine on how cases would be resolved whether they are easy questions or hard questions. I cant do that. Sen booker so im not the lawyer that you are but you seem to honor the precedents that is enough to protect discrimination against african americans, interracial couples, but you stop on saying that unequivocally about people stopping religious discrimination against a muslim couples wedding or interfaith wedding. Judge barrett what title vii says as im sure you know is title vii prohibits discrimination on the basis of race, on the basis of sex. All i can do is say refer to the statute. But of course, as to whether there would be evidence to show or whether any particular encounter between a customer and a florist or a baker violated title vii, that would be a case that would have to come up as i discussed. With real litigants litigated on a full record. If you are asking a series of hypotheticals. Sen booker im assuming that you will not respond for the same reasons you have uttered before, you would not respond about whether a florist can refuse to serve a samesex couple. Judge barrett it sounds like you are on your way to talking about Masterpiece Cake shops and some of the cases that are very hotly contested and winding their way through the courts. I want to make sure i am not in a position that i am soliciting any views on litigation. Sen booker you can understand if we go back to the question that both i and senator ask you about, you said you didnt mean to offend about whether it is a choice or not. These are the characteristics of the individual, like their race. I just want to close by saying that the stories some folks in my Home Community of new jersey, emily and jan, theyve been together for 51 years, theyve raised three children at last count and i think that is really putting it they had 18 grandchildren and 20 greatgrandchildren. You know how families are. But for a long time they had to keep the relationship a secret. Marriage became legal, they got married and thanks to the Supreme Court decision of obergefell they can now enjoy their full rights. Judge barrett, you are asking the senate to agree to any replace Justice Ginsburg which would tilt the balance of the court further to the right. Remember that it was Justice Ginsburg who warned against full marriage for some couples and skim milk marriage for others. Couples in my state of new jersey and around the country, emily, jan, are worried about what might happen if the Supreme Court starts to peel back some of their hardfought rights. They believe that their love should be valued by the as theent as equally love of any other people and they believe that a lot of the rights that they now enjoy which were denied in the past two africanamericans, even, they believe that they should be able to preserve them. My time has expired, youve been very generous as has the chairman of allowing me to go over. Im grateful to have the opportunity to talk to you more tomorrow. Judge barrett thank you, senator booker. We will take a break for supper i think. Thank you, mr. Chairman. We are four away from the finish today. Before i begin, i do have a couple of letters i would like to submit from the record. One from the speaker of the idaho palace in support of judge barretts nomination, and the other from the National Shooting Sports Foundation also in support of the nomination, mr. Chairman. Thank you. I will get you some new material, but a lot of what i do at the beginning will be going over things youve already said and you must think you have said them way too many times. Be sure thatjust begin some things nailed down once more. Before i do that, there has been a lot said today that really needs to be responded to. You,wont be a question to im just going to quickly respond to a couple of them. The first was one of my colleagues, senator whitehouse, spent a long presentation trying to make the case that there is a lot of dark money out there trying to control the Supreme Court nominations and this whole process and the situation that we face today. I just want to set the record straight, these are actually some statistics that senator cruz quickly went through when he spoke. There is dark money in politics and i think that we should get it out. Is money where you dont know who the real donors are behind the entity that is making the expenditure. Fortunately, we are getting a lot about out, but there is still a lot out there. The impression that was left was that the start money is all on one side. The reality is if you look at open secrets, this data is from 2016 but the same data even into 2018 and it is the same kind of statistics, and that is that really, the significant majority of the dark money is being spent in favor of the democratic side rather than the republican side. Of the top 20 organizations and individuals that they identify who contribute to super pacs who then utilize the money in a way that was talked about, 14 of them gets exclusively to democrats. The top 10 on that list, only two give to republicans. And the totals, by the way, ford and 22 million in this report going to democrats, 189 million going to republicans. So there is money in the system, which we cant a lot of this money, by the way, is going against you, judge barrett, but we cant give it all out yet. With not try to create the impression that this is just some onesided circumstance that is happening in the country. The other thing i want to go over first before i get into my questions is the same thing i went over yesterday, because the allegations have been made again and again and again, that somehow we are rushing this case and somehow we are violating the history and the precedent of the way the senate operates and the way the presidency operates when there is a vacancy in an Election Year. Some people count these things differently. There is a statistic that i will use that will count all vacancies that have happened, whether the vacancy occurred in the Election Year or whether it just didnt get resolved until the Election Year. But it doesnt matter whether you just take the one that are within the Election Year or you take all of them that will result in the Election Year. The precedent is the same, it is overwhelming. In every single case, the sitting president made a nomination. Every case. Which theases in senate was of the same party as the president , im going to use one for all of the nominations that actually were dealt with in an Election Year, there were 29, 19 of them were when the party was the same as the president. 17 of those 19, the party moved ahead with the president s nomination and the nomination was confirmed. Times, it was when the party was not the party of the president. Cases, the party that was not the party of the president declined to move forward until the next president was elected. That is the precedent of the senate, that is what happened in 2016 when the senate was of a Different Party than the president , and it is what is happening now when the senate is the party of the president. Those are the facts, and that is the president. Precedent. Theres a bunch of members of the Supreme Court whose nomination hearings started sooner than that, including ruth bader ginsburg. So, the fact is that normal procedures, appropriate timing, and appropriate policy and precedent is being followed here as we move forward. Having made those points once again, i would get into some new questions for you, but im going to go over a lot of things that youve already talked about because i really think its important that we just make it as clear as possible. You talk about original is an and textualism. Is there a difference between those things . Judge barrett they are the same basic approach, but we use originalism mostly to refer to interpreting the constitutional text, and textualism to infer to interpreting statutory text. But they both involve the same principles, which is that one comes to the law and interprets it as it would have been understood by those at the time of its ratification in the case of the constitution or its enactment in the case of a statute and that the longer remains the law until it is changed through democratic processes. Thank you. I assume you would consider yourself both originalis and a textualtist. Judge barrett i do. And you have written quite a cedent. Ut pre maybe you could make a distinction about the appellate level in the Supreme Court level. Judge barrett theres two kinds of starry decisiveness. Theres horizontal, the Supreme Courts obligation to follow its her iscdenet, and vertical, my obligation right now on the seventh circuit falls precedent. Vertical, there is no question. The Supreme Court judge sets the precedent. , forontal precedent example, on my own court right now, the court that renders a president does have the ability to reconsider it under Certain Circumstances. Otherwise, plessy versus ferguson would still be the law of the land. Tell me, what are the rules there when you do horizontal reevaluation . Judge barrett when a Court Decides whether or not to overrule a precedent, it considers first of all, is it wrong . And how egregiously wrong is it . As we can see in brown v. Board of education, that factor place. Before, stand by the thing decided and dont disturb the calm so cordial recklessly get in the business of just stirring up peoples lives unless the other factor is in favor of doing it. You consider whether the law has developed in a way that undercuts the foundation of the precedent itself, same for the facts. You also consider whether the precedent that you have set has proved to be workable for the court below you that must follow it. That would mean the District Court. Have we set out an articulation of the law indicates that lower courts can actually use. To paraphrase, if a judge a horizontal situation, either a Supreme Court justice and i wouldnt Supreme Court precedent or a Circuit Court judge evaluating the Circuit Court precedent, if they felt the precedent was wrong, that is not enough. Judge barrett that is not enough. You have to have the reliance and the other factors all falling into the right circumstance before a decision to actually overrule or overturn a precedent is made. Judge barrett thats true, and this might be a good time for me to make one other point about horizontal doctrines. I cant remember which interchange it was, someone was pointing out that i said they should have weaker effects on constitutional cases. Thats actually what the Supreme Court has said, that is a wellestablished principle of decisis. You can always step in and fix anything that the court might make, but the court itself has expressly said that it gives. Eaker stare decisis i just want to be clear that there is simply a restatement of the courts own doctrine, that was not something i invented. You also mentioned earlier that there are some super precedents . Judge barrett i cant remember how many, but as i said, it is in constitutional law, there are some precedents that scholars have identified as utterly beyond question that no serious person ever calls for their overruling. I think brown v. Board of education would be one of those . Judge barrett marbury versus madison which establishes the power of judicial review. Lets see. Me toprobably easier for just identify what the precedent stands for. Judicial review. The power of the Supreme Court to refuse judgments in state courts. The proposition that a 14th amendment applies only to state action. The incorporation of the Fourth Amendment and by implication, the other bills of rights against the state. So they are mostly structural and foundational principles, no one seriously challenges them anymore. I appreciate that, i think that is very helpful. In this hearing, youve been asked about at least three very significant Supreme Court precedents and youve been asked whether you were asked to commit to overturn them or whether you even had conversations with the president or his staff about them. I just want you to give your answer, because i want this to be very clear. You had any have conversations with the president or with the white house staff, white house counsel, anyone, and have you make any commitments about how you would rule on any case dealing with that . Judge barrett i have not. Thank you. And the same set of questions ogerdefell. To i have not had any conversation with anyone in the white house about my views on it or how i would rule. California the texas . California v. Texas . Judge barrett no conversations at all. You earlier testified that there is a difference between judicial decisionmaking and the process of making a judicial decision reverses the process you would make as a professor when writing an article or what have you. Can you quickly get into that with me . Judge barrett a professor when writing law review articles, they are doing academic critique. It is kind of at a 10,000 foot level. You are not in the trenches like a judge is because you are not deciding it in the context of a real case with real litigants inside of you. The adversarial process where you have people on either side, where you hear arguments and you consult with your colleagues and you write your opinions. I think one thing is worth pointing out about the judicial process, that i have had the experience of changing my mind at various points along the way. Ive gone into oral argument more than once thinking i was going to roll one way and that argument changed my mind. My colleagues have changed my mind. I have even changed my mind, and this is not uncommon on the court, once i started writing an opinion. Judges say it wont write which means what you thought was right you realize actually didnt really work out. I think that process and the fact that judges keep an open mind all the way through is evidence of how the judicial process really is unique in our system. It is a different enterprise than academic critiques. Ive been able to observe that a little bit, i clerked on the ninth circuit. Ive been able to observe that exact process in each of those steps that you talked about taking place, and you are right, that is how it happens. More i want to go to one specific kind of processtype thing to make sure we all understand it, and that is the recusal. Interestingly, youve been asked by my colleagues on the other side to assure that you have made no commitments about case law, but that to give a commitment on recusal. You have said that there is a process for recusal as well and that you would all of it. Could you please lay that out once again . Judge barrett recusal is the question of law because 28usb455 actually obligates the judge to recuse in certain cases of actual bias or apparent bias and there are Supreme Court precedents interpreting the range of a judges obligations under that statute. There are also professional conduct committees to consult and i think collaboration and consultation, as ive said before, with other justices, is a difficult practice according to justice and the description of it. So it is a legal question that is governed by statute and precedent so it is not one i can make an advanced resolution of. Thank you. Now i want to move to, frankly, texas. O california v. And the preexisting conditions issue that has been raised by a number of my colleagues here. Weve heard a lot about the Affordable Care act yesterday and today. On the finance committee as well as the Judiciary Committee, so this is an issue i really care about him off and i am passionate about ensuring that all individuals have Affordable Quality Health Care Coverage and making sure that they have coverage for their preexisting conditions is especially important. Regardless of what one thinks about the obamacare legislation, reasonable people can disagree about the totality and the success of obamacare and this is something that i think should be remembered. That many of the policies in obamacare were policies on which we had agreement. Between republicans and democrats as we move forward trying to craft a health care law. People may recall this was being negotiated in the finance committee for quite a while before president obama hold us back in and brought his own statute out. One of the things that we had agreement on was protecting preexisting conditions back then. There was no fight over that. In fact, i think every singer u. S. Senator wants to protect access to coverage for patients with preexisting conditions. Republican and democrat. So, here we are now, talking about the obamacare legislation that was pushed through the senate when there was a senate and a president of the same party and the ability to filibuster. We are now looking at legislation challenging one part of that. Again, youve talked about this, but i would like to just set up this next question. There is a difference between nfib versus the case which you have made some commentary on, and texas v. California. Could you tell me the difference . Judge barrett yes, nfib involves whether the mandate violated it was framed initially as a case about whether the mandate violated the commerce clause. And the majority in that case as we discussed earlier, interpreted the mandate provision to be a tax rather than a penalty and chief Justice Roberts said that he thought it was justified as an exerciseof xing power. Ta now, the new case that the Supreme Court is going to hear involves a different question, if the mandate which has now been zeroed out, the initial ifstion does resemble something is taxed, is it zero dollars if it is not a tax, can it be justified under Congress Taxing Power . Severability, even assuming that it is no longer a tax because it is zeroed out, the next question is if that provision is unconstitutional, does that provision become inactive, so to speak . Or does the whole statute fall . That is a question of severability. Whether oneects, thought that the mandate was unconstitutional or not, that would have to be on severable. You may not know the answer to this, but i believe that in the last session of the Supreme Court, Seven Members of the court said that there was a very strong presumption against in favor of severability rather than knocking down an entire statute. That is true, it was reiterated in the last term. Mootd you participate in a court case on this last month . Or in the near future . Can you tell us what a moot court case is . Judge barrett william and Mary Law School has ever year what it calls its Supreme Court preview and it includes a moot court case. There is a long tradition of exercises at law schools. Sometimes theyre called mock trails, sometimes theyre called mood court, that is when they are appellate. It is a chance to educate the Community Around the law school, or in the case of this program, it also draws in people from around williamsburg so that they can see how the judicial process works. And judges often participate, right . Judge barrett judges often participate and in this particular one, comprising the panel, the conference involved several others, but this one involved a panel that was supposed to be a mock argument for this case about four judges, a couple law professors, and some journalists who were on the panel with advocates slicing out the case so that students could see how the process might look. Sen crapo and so, what did the court decide . Judge barrett well, i do want to preface this by saying it was an educational exercise. Sen crapo i understand. Judge barrett it was made very clear to the audience both at the outset and in the deliberation room and outside that this was not designed to reflect the actual views of any of the participants. This wouldt, because show up, diving deep down, and a lot of times people change their votes in the deliberation room just for the sake of making it interesting. Sen crapo i appreciate you making that distinction. The vote was in the panel, the majority said that the mandate was now a penalty and was unconstitutional, but severable. I think there was also a group and a minority who said there was no standing. To be honest, i cant remember. I could be wrong about this, i feel like there is maybe another minority that said it wasnt unconstitutional. Sen crapo and how did you vote . Judge barrett i voted to say it was unconstitutional but severable. Sen crapo so you voted in favor, the one clue as to your thoughts we might have on the issue even though this was just a nexus size and you do not have the whole case presented. I will just say to the viewers, the one clue we have is your ruling in this moot court case and i think that is kind of an answer, frankly, to a lot of those who raising the specter that you are going to try to take the whole Affordable Care act away from everyone because of this very narrow case that is in front of the Supreme Court. Judge barrett i do want to be very clear, for the record, that it wasnt designed to reflect my actual views. To the extent that people think i might have been signaling to the president or anyone else what my views on the Affordable Care act are, they couldnt have taken any signals from that, certainly. I wasnt trying to signal anything because it was a mock exercise. Sen crapo it was a mock case, i understand that. Very much. Let me just go into a couple of other issues here. In fact, i can do them very fast. Caseor ernst mentioned a on the waters of the United States. That was a big deal in idaho and frankly, in most of the western united dates, most of the entire United States. Appreciated your ruling and im just going to tell you, im not going to ask you a question about it, i appreciated your ruling. I am going to ask you a question about the chevron doctrine. This is one of those you may not be able to respond to, but did you tell me what the chevron doctrine is . Judge barrett i got into this a little bit with senator ernst. The chevron doctrine is the doctrine that when a statute is cleared than that of the end of the case but if Congress Passes a statute that is getting an Agency Authority or that is describing the boundaries of an agencys authority, when there is ambiguity in that statute, then the court will treat that ambiguity as a delegation to the statute, a delegation to the agency. Sen crapo and i will just tell you, i disagree with that doctrine. I think that the courts ought to have the ability to interpret the statute and if it is ambiguous, they should interpret it as best they can and the interpreter in our system should not be the agency that is enforcing the statute. I think the courts should oversee that. That is just my opinion. The question that you probably cant answer is what is your opinion . Judge barrett you are right, i cant answer. Sen crapo ok. Well, thank you very much. Another couple of quick questions. I was going to go into the case. I will ask you, tell me, what do you believe the basic ruling of heller is . Judge barrett the basic ruling is that the Second Amendment protects an individual right to bear arms in selfdefense. Sen crapo so if i were to characterize it that it reaffirmed the right to bear arms is one of the rights guaranteed in the bill of rights, to individuals . Judge barrett that is what heller held. I do have a number of additional questions which were just kind of softballs. Judge barrett i like softballs. Sen crapo maybe you deserve softballs right now but think instead, i will give you a break. You can have the last five minutes of my time or we can be done five minutes sooner. Thank you very much for being willing to do this. You are an outstanding nominee and im very glad to be able to support you. Judge barrett thank you, senator. With that goodwill in mind, we will break and we will come back at 6 50. That will give us a few minutes to grab a bite. Announcer you are watching cspans live coverage of the Amy Coney Barrett Supreme Court nomination hearings. If any of the senators come to to make a statement, we will certainly go live. This is round one. Three more senators are due to have a half hour each to question her. Coming up next after this dinner break is senator Kamala Harris, the democratic Vice President ial nominee, followed by two republican senators, senator kennedy of louisiana, which is homestay,barretts and finally, Marsha Blackburn of tennessee. That is all coming up after this dinner break. Tweets that have been happening throughout the day, we do want to share with you as well. Senator john thune the republican in the senate, i think it is abundantly clear to everyone my colleagues across judgesle including barrett is absolutely qualified to be a Supreme Court judge. And any Klobuchar Amy klobuchar, todays hearing isnt normal, the senate should be working for the 7. 7 million who are suffering from covid. We should be helping the workers, Small Businesses and parents who are struggling. We shouldnt be filling a Supreme Court seat, we should be passing a relief package. And then this one is from erin rupar of vox media. Senator thom tillis owns the libs by reading Amy Coney Barrett random mean tweets that people wrote about her. She does not look thrilled. Tokai, actor and lgbt activist, it is not a sexual preference, judge barrett. A preference is something you choose. I will give you an example i have a preference for nonradical, nonfundamentalist justices on the Supreme Court. Are we clear . That was in reference to an exchange she had with the senator of hawaii. Another tweet from kyle griffin of msnbc, asked by senator klobuchar if it is in legal to intimidate justice at the polls, just as barrett said she cannot characterize the facts in a hypothetical situation. In response, klobuchar sites u. S. Law barring voter intimidation. Blog,his tweet from scotus the Supreme Court is in session with eight members. The Supreme Court has granted an emergency request from the Trump Administration allowing it to end the 2020 census count early. Justice sotomayor dissents. And from the new york times, the Supreme Court on tuesday allowed the Trump Administration to shut down the census count ahead of schedule, a move that could allow the Census Bureau to declarations excluding unauthorized immigrants by the end of the year. The order gave no reasons which is typical when the court ask on emergency application. Just a sotomayor dissented saying that the Harms Associated with an inaccurate census are avoidable and intolerable. Some of the questions and answers that have been provided today are showing up, of course, in publications and in the hill newspaper under this headline, ett declines to say if trump can unilaterally delay election. On hot buttonett issues like obamacare and the november 3 election, have sheggled to pin down how would rule on such cases if she is confirmed later this month. While stressing that she would not bring a political agenda to the bench, has given no guarantees to the white house about future rulings. Some of the most divisive issues being discussed. Here is an exchange she had with the Senate Democratic leader on the committee, senator Dianne Feinstein about the november 3 election and whether or not a president can unilaterally delay it. Followed by the chair of the committee, senator graham of South Carolina, discussing his views on this issue. 2020, President Trump made claims of voter fraud and suggested he wanted to delay the upcoming election. Does the constitution give the president of the United States the authority to unilaterally delay a general election under any circumstances . Does federal law . Judge barrett senator, if that question ever came before me, i would need to hear arguments from the litigants and read lawfs and consult with my clerks and talk to my colleagues and go to the opinion writing process. If i give offthecuff answers then i would be basically a legal i dont think we want juds to be legal pundits. We want judges to approach cases thoughtfully and with an open mind. Ok. Let me try something else. [inaudible] president to delay an election. She said she couldnt answer that question. I dont know of any constitutional provision that would allow the president to delay the election. If somebody makes that argument, she will listen to it. From my point of view, i dont know of any constitutional provision that would do it. I dont know if anybody is suggesting that. The president suggested im confident we will vote on november 3. It will take time to get the results in. We wont delay the election. We didnt delay it during world war ii or during the spanish flu. We wont delay the election. Host that was senator graham from earlier today. Another article, another issue that was brought up by dick durbin. Democrat of illinois. He asked about the George Floyd Murder in minneapolis in may. This is from usa today. We left together. Amy Coney Barrett says the video was personal for family. Here is her response. Have you seen the george floyd video . Judge barrett i have. What impact did it have on you . Judge barrett senator, as you might imagine, given that i have two black children, that was very personal for my family. With the boys on a camping trip in south dakota. I was there. My 17yearold daughter, who was adopted from haiti, it was difficult for her. We wept together. It was difficult for my daughter juliet who is 10. I had to try to explain this to them. My children, to this point in their lives, have had the benefit of growing up in a cocoon where they have not yet. Xperienced hatred or violence for vivian, to understand that there would be a risk to her brother or the son she might have some day, that kind of brutality. That has been an ongoing conversation. Itis difficult for us, like is for americans all over the country. You, asld like to ask an originalist who has a passion for history, i cant imagine that you can separate the two. Reflect on the history of this country. Where are we today when it comes to the issue of race . Some argue its fine. Everythings fine and you dont have to teach children about the history of slavery or discrimination. Others say theres implicit bias in so many aspects of American Life that we have to be very candid about and address. Isers go further and say, it systemic racism that is built into america and we have to be much more pointed in our efforts in addressing it. How do you feel . I think it is so an entirely uncontroversial and obvious statement, given 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, whether its just outright or systemic thesm, or how to tackle issue of making it better, those things are policy questions. They are hotly contested policy questions. They have been in the news and discussed all summer. While i did share my personal experience, im happy to discuss the reaction our family had to the george floyd video, giving broader statements or making router diagnoses about the problem of racism is beyond what im capable of doing as a judge. Host that was from earlier today. Three more senators have round one questions, that will happen after the dinner break which is scheduled to end in about 20 minutes. First up, senator Kamala Harris followed by two republicans. Thats coming up at about 6 50 p. M. Eastern time this evening. We will be live with that. The second and third rounds of questioning by the senators are tomorrow. Thursday is scheduled for extra witnesses. That will all be live, of course, on cspan. One of the issues that got a lot of coverage in todays hearing, as has been the case in many of the past Supreme Court nomination hearings, is the issue of abortion and roe v. Wade. Senator klobuchar asked about precedent of roe v. Wade. Heres how forbes played it. Amy Coney Barrett says roe v. Wade is not super president. Heres the exchange with senator klobuchar. You separately acknowledged that in planned parenthood versus casey, Supreme Courts controlling opinion talked about the reliance interest on roe v. Wade, which it treated as super president. Is it . Judge barrett how would you define that . I thought i would be sitting in that chair. Im not. Masking you. Judge barrett people use it differently. The way it was used in the article you are reading from was to define cases that are so well settled that no political actors and no people push for their overruling. Im answering a lot of questions about row which indicates that it doesnt fall in that category. Scholars across the spectrum say that doesnt mean that roe should be overruled. This crypt of lee, it means that its not a case that everyone has accepted and doesnt call for its overruling. Heres whats interesting. You said that brown is a super precedent. That is something the Supreme Court has not even said. You have said that. If you say that, why wont you say that about roe v. Wade . A case that the courts controlling opinion in that planned parenthood the casey case has described as a super precedent. Judge barrett i can just give you the same answer that i just did. Im using a term in that article that is from scholarly literature. Its one that was developed by scholars who are certainly not conservative scholars, who take a more progressive approach to the constitution. Said, roe isllon not a super precedent. That doesnt mean that it should be overruled. It just means that it doesnt fall on the small handful of cases like brown versus the board that no one questions anymore. Is the United States of Virginia Military super precedent . Judge barrett if you continue to ask questions about super precedents that arent on the list of the ones that i discussed in the article, that are well acknowledged in literature, ill have to say that i cant grade it. Here is Amy Coney Barrett returning to her private room off the Senate Judiciary Committee Hearing room. Live inring will resume about 15 minutes or so. That was Amy Klobuchar talking about super precedent and roe v. Wade. One of the other issues that was brought up by the democratic side was whether or not Amy Coney Barrett would recuse herself from any upcoming political issues, such as election rulings and things like that. The Washington Times says that Amy Coney Barrett wont commit to recuse on election and obama care disputes. She had an exchange with the former chairman of the Judiciary Committee Patrick Lakey of vermont. Larson sat next to you during your 2017 hearing. She was confronted with this issue as a judge on the michigan Supreme Court. In 2016. Pleasant and elect trump challenged a ballot recount. Judge larson was on the short list for the Supreme Court at the time. On the shortlist was on a conflict and required her recusal. You are also on the shortlist. You are actually chosen. Hes not the president elect, hes the president. Thing as he similar hesith judge larson, counting on you to deliver him the election. Judge larson said that was a conflict for her. And would have to recuse. [inaudible] is that correct . Judge barrett im not familiar with judge larsons decision. She clearly made it once it was presented to her in the context of an actual case where she had to weigh her obligations. Would,ented to me, i like judge larson, apply that statute. I recently read a description by Justice Ginsburg of the process that Supreme Court justices go through in deciding whether to recuse. It involves not only reading the statute, looking at the president , precedent, consulting counsel if necessary. The crucial step is that it is always the decision of an individual justice. It happens after consultation with the full court. Withoutoffer an opinion shortcircuiting that entire process. We are reminder that still in round one of questioning of Amy Coney Barrett. Three more senators coming up right after the dinner break ends in about 10 minutes. Senator Kamala Harris be the first senator to question her, followed by senators kennedy and blackburn, both republicans. First round only today. Tomorrow is the second and third round of questions by the senators. Thursday, there will be additional witnesses and a onmittee vote is expected october 22. Even though we are only on day two of the confirmation hearings, everything that weve covered is available at cspan. Org. Theres a whole page set aside for confirmation hearings for judge barrett. You can watch any of the members questioning. You can watch her responses. You can watch the whole thing available to you at cspan. Org. Tomorrow morning on the washington journal, we will continue to take your reaction to the confirmation hearings of judge barrett. That begins tomorrow morning at 7 00 a. M. Ted cruz is another member of the Senate Judiciary committee. We will show you a portion of his back and forth with judge barrett. It got a little bit of attention today because it was unorthodox. Here is senator ted cruz. Sen. Cruz Little Sisters of the poor, a catholic convent of nuns who take oaths of poverty, who devote their lives to caring for the sick, caring for the needy, caring for the elderly. The Obama Administration litigated against the Little Sisters of the poor, seeking to find them in order to force them to pay for abortion inducing drugs among others. Its truly a stunning situation when you have the federal government litigating against nuns. The court decided the hobby lobby case and other cases, routinely denouncing by Senate Democrats. The hobby lobby case concluded the federal government could not christiany force a business to violate their faith. It reflected the religious liberty traditions of our country, that you can live according to your faith without the country trampling on it. You know what this body did, im sorry to say . Senate democrats introduced legislation to got the religious freedom restoration act. When it passed this body, it passed with an overwhelming bipartisan majority. Democrats, including chuck schumer, all voted for the religious freedom restoration act. Democratic president bill clinton signed the religious freedom restoration act. Yet, in the wake of the hobby lobby decision, this body voted on legislation to just got the protections for religious liberty. Im sorry to say, every single Senate Democrat voted to do so. Zero, would one, defend religious liberty. To biden has already pledged initiate again the attack on the Little Sisters of the poor. Its interesting. Folks in the past like to talk about francis. Francis hases, pope been vocal when it comes to the environment. When it comes to issues concerning immigration. He have been that has been vocal on issues that are democratic colleagues agree on. From thatssing amplification is acknowledgment that when the pope came to the United States and washington, he visited the Little Sisters of the poor. Here in d. C. , he went to their home. He did so because he wanted to highlight their cause. That the federal government shouldnt be persecuting nuns for living according to their faith. Thats what is at stake in these nominations. Any of that from the Senate Democrats on this committee. Thats why their base is so angry at your nomination. They dont believe you are going to join the radical efforts to erase those fundamental rights from the bill of rights. That issue, preserving the constitution, preserving the bill of rights, our fundamental liberties. Its the most important issue facing the country in the november elections. Think, for those of us who value those rights, we should take solace in the fact that not a single democrat is willing even to acknowledge the radical sweep of their agenda, much less defendant. They know its wildly unpopular. Is a at the heart of this decision Many Democrats have made to abandon democracy. Policy, like obamacare, like health care, most policies under a constitutional system are meant to be decided by democratic elected legislatures so they can be accountable to the people. If the voters disagree, they can throw them out. Too Many Democrats have decided today that democracy is too complicated, too hard to actually convince your fellow americans of the merits of your position. Its much easier just to give it to the courts. Find five lawyers in black roads robes and let them decree the policy outcome you want, which makes your radical base happy, presumably makes the millions if not billions in dark money being spent for democrats happy. Without actually having to justify it to the American People. Barrett, im not going to ask you to respond to any of that. Shift to ao different topic. You, more about personally. Your background. Do you speak any Foreign Languages . Judge barrett once upon a time, i could speak french. I have fallen out of practice. Please dont ask me to do that right now. Sen. Cruz [laughter] i had two years of High School French and i suspect yours remains much better than mine. How about music . Do you play any instruments . Judge barrett the piano. Sen. Cruz how long . Judge barrett i played it growing up for 10 years. Now, most of my piano playing consists of playing my children songs for them and supervising their piano practice. When day what i have more time, i will choose some of my own music. Host we are back live in the Senate Judiciary Committee Hearing room. The last senators from round one will begin shortly. Kamala harris, kennedy, and Marsha Blackburn will be spending a half hour talking with her as well. Everything that you have seen so far today and the entire confirmation hearing process is available to watch online at cspan. Org. We will go back live to the Senate Judiciary Committee Hearing room now. We will await the chairman to come back in the room and gavel the session in. And then the first senator to question Amy Coney Barrett will be Kamala Harris. [indistinct conversations] i apologize. Senator harris, is she available . Harris. There you are. We see you. Can you Say Something . Can you hear me, senator . Sen harris yes i can. Great. The floor is yours. Sen harris thank you. I want to extend greetings to judge barrett. I look forward to our conversation this evening. Judge barrett thank you, senator. Sen harris before i begin, i want to take a moment to talk directly to the American People. About where we are and how we got here. We are in the middle of a deadly pandemic that has hit our country harder than any other country in the world. More than 215,000 of our fellow americans have died. Millions more, including the president , republican members of this committee, and more than 100 frontline workers here at the capitol complex have been infected. This pandemic has led to a crash, causingic millions of workers to lose their jobs without warning. 12 million americans have lost their employerbased Health Insurance. Believes trongly needs to be laser focused on the American People to help you get through this pandemic. To do so, the senate urgently needs to pass critical Financial Relief for those who are struggling because of this pandemic and many are struggling. People need help. They need help to pay their rent or mortgage. Parents need help putting food on the table. The millions of American Workers who have lost their jobs need help making it through the end of the month. Small businesses need help so they dont have to close their doors for good. Sadly, Senate Republicans have rushed to hold the Supreme Court confirmation hearing rather than help those who are suffering in a Public Health crisis not of their making. As i said yesterday, these priorities are not the American Peoples priorities. Signed thedent obama Affordable Care act into law, Senate Republicans number one priority has been to tear it down. Companies aca insured had unchecked power over our health care system. They could refuse to cover basic medical expenses like Maternity Care, mammograms, perception drugs, hospital stays. Worst of all, if you were sick, they could deny you coverage altogether and there was nothing you could do about it. For the last nine years, republicans in congress have tried 70 times, 70 times to aca inor rollback the the United States congress. In 2013, Senate Republicans were so desperate to stop at success that they shut down the entire government for weeks. After President Trump was elected, Washington Republicans spent nearly a year trying to repeal the aca. I will always remember the thousands of americans from all over our country and all walks of life who crowded into the halls of the United States capital to require that lawmakers see their faces and understand how they would be hurt if there was a repeal of the Affordable Care act. Brave activists in the Disability Community staged sit ins on the hill. Seniors protested to keep prescription drugs affordable. Mothers and fathers walked the halls with their children in strollers to Show Congress the face of those who depended on the law. Doctors and nurses protested to protect their patients access to the care they desperately need. Together with many of my colleagues, i joined civil rights and Community Leaders to speak to the thousands of people who gathered outside the capital and pleaded as they begged with lawmakers to do the right thing. Americansse dedicated demanding that their voices be heard and they made a difference. They made a difference. History will remember that when thet movement great john mccain denied republicans the opportunity to repeal the Affordable Care act. Now, following a decade of failure, Washington Republicans have realized that the Affordable Care act is working too well and helping to many people to repeal it without facing serious political consequences. What are they doing . ,fter suffering the backlash they decided instead to circumvent voters and try to strike down the Affordable Care act through the courts. Right now, the Trump Administration and Senate Republicans are urging the Supreme Court to strike down the entire Affordable Care act and all of its patient protections. Republicans are planning to confirm this nominee as fast as possible because they need one more trump judge on the bench before november 10 to win and strike down the entire overlook care act. Affordable care act. This is not a hypothetical situation. This is happening. Heres what you have to know. People are scared. People are scared of what will happen if the Affordable Care act is destroyed. In the middle of a pandemic. There are more than 100 million americans with preexisting conditions like asthma and diabetes, Heart Disease who know they could be denied coverage or charged more by Insurance Companies if donald trump is successful in getting rid of the Affordable Care act. Because of the coronavirus, more than 7 Million People have now a preexisting condition that they didnt have earlier this year. Those who depend on the aca are afraid of their lives being turned upside down if the Court Strikes it down. They know what could happen. I will share with you and the American People the list. No protections for preexisting conditions. Higher costs for health care for women. And people over the age of 50. Young adults kicked off of their parents insurance. More expensive prescription drugs for seniors. Insurance companies refusing to cover Mental Health care. Insurance companies refusing to cover Maternity Care. No free mammograms, cancer screenings, or birth control. Insurance companies reinstating annual and lifetime caps. More than 20 million americans losing insurance at the worst possible time, in the midst of a pandemic, including nearly 2 northn texans, 607,000 carolinians, 288,000 south islands,ns, 227,000 and 4. 2 million californians. The pain of losing these protections would disproportionately be felt among the 9 million africanamericans, latino, asian, and native americans who gain coverage under the Affordable Care act. This isnt about statistics. This is about millions of real , whoe living real lives deserve their government and its institutions to see them and to keep them close. I know a republican member of this Committee Said earlier today that the people who will Lose Health Care are somehow not relevant to this hearing. I disagree. People is supposed to be why we are all here. Why we all ran for office in the first place. Im here to fight for people like fareed felicia perez. This is her. Felicia is a writer, a public speaker, a former High School Teacher in Southern California who now teaches at the university of nevada. She has multiple preexisting conditions including arthritis, asthma, and a rare autoimmune tumorer that has a wrapped around part of her brain. Periodicdepends on cancer fighting treatments that cost 460,000 a year. Felicia is terrified. She knows that without the Affordable Care act, she could not afford ongoing treatment. The treatment she needs to stay alive. Heres exactly what she said. My life is in the hands of people i do not know, who do not know me, who are essentially telling me i dont matter. That my life doesnt matter. That my health doesnt matter. That the daytoday quality of my life doesnt matter. Thats really hard. Tragically, felicias story is not unique. Her fears are shared by millions of americans. The Affordable Care act and its protections hinge on the Supreme Court and the outcome of this hearing. Election, President Trump promised that every just as he put forward will do the right thing, unlike bushs appointee on obamacare. Merrick, 18 months later, you criticized the chief judges for upholding the a portable care act a character. Affordable care act. Monthstion is, how many after you publish that article did President Trump nominate you to be a judge on the court of appeals . Judge barrett i apologize. I dont remember the timing of that article. I was nominated my nomination of 2017. Nced in may sen harris thats correct. Judge barrett i dont remember when the article came out. Sen harris january a toy 17. That would be five months later. Provided asburg vote to sixth boat uphold the a cap afford care act. Lets lay this out. As i have discussed previously, republicans have spent a decade trying to destroy the Affordable Care act. Named a Supreme Court justice who would tear down the Affordable Care act. Is before thep Supreme Court right now arguing that it be struck in its entirety. The Supreme Court could be just one vote away from overturning the Affordable Care act and all of its protections, including for everyone who has a preexisting condition or may get a preexisting condition. In other words, the Affordable Care act and all its protections hinge on this seat and the outcome of this hearing. I believe its very important that the American People understand the issues at stake. Barrett, the day after President Trump announced your nomination to the Supreme Court, he tweeted, obamacare will be replaced with a much better and far cheaper alternative if it is terminated and the Supreme Court. In reality, theres no alternative that protects the millions of americans who depend on the Affordable Care act every day. President trump and the republicans in congress are fighting to take Health Care Away from the American People in the middle of a pandemic. President trump has said that he wants to protect the American Peoples health care. The reality is right now, hes asking the Supreme Court to take it away. Klobuchar asked you earlier today but did not receive an answer. Prior to your nomination, were you aware of President Trumps judgesnt to nominate that will strike down the Affordable Care act . I would appreciate a yes or no answer. Judge barrett i want to be very careful. Im under oath. I dont recall seeing those statements. I dont recall seeing or hearing those statements. I dont really know what context they were in. I cant really definitive give you definitively give you an answer. I dont recall hearing about or seeing such statements. Imagine you were surrounded by a team of folks to prepare you for this nomination. Judge barrett yes. Sen harris let me finish. Judge barrett im so sorry. Sen harris did they inform you of the president s statements . That this might be a question that would be presented to you in the course of this hearing. Judge barrett when i had my calls with senators, it came up. Senatorshe democratic wanted to know about the Affordable Care act and to satisfy themselves that i had not made any precommitments to the president about it. Sen harris youth then became aware of the statement . Is that correct. Judge barrett lets see. In the context of these conversations, i cant remember whether senators framed the questions in the context of President Trumps comments. Perhaps so. From my perspective, the most important thing is to say that i have never made a commitment, i have never been asked make a commitment. I hope the committee would trust my integrity not to entertain such an idea and that i would not violate my oath if i were confirmed and heard that case. Saying that are you you are now before i said it aware or not aware that President Trump made these comments about who he would nominate to this the Supreme Court . Judge barrett i thought you framed the question as whether i was aware before the nomination process began. [inaudible] sen harris were you aware before the hearing began . Judge barrett youre asking me now whether i was aware before the hearing began . Sen harris as a followup question, i am. Judge barrett when i had my calls with democratic senators, this question came up. I dont recall. It may have been that they reference those comments in the course of those calls. Even so, that wasnt something i heard or saw directly by reading it myself. Do you think it is important for the American People to believe the Supreme Court justices are independent and fair, impartial . Yes or no answer. Judge barrett yes, senator. Sen harris a number of my colleagues have asked you today whether you would recuse yourself from cases on the Affordable Care act. You did not directly answer their questions. You describe the process by which that would happen. My question is, isnt it true that at the end of that process, regardless of that process, it would be you who ultimately makes the decision about whether or not you would recuse yourself . Judge barrett that is true. I can to you elicit a commitment from me about how i would make that decision in advance. That would be wrong. Sen harris right. Is it not correct that that is the process that, ultimately would be you and you alone that would make the decision about whether you would be recused . Talked about the constitutionality of the Affordable Care act. That position [inaudible] republicans want you to rule on this very case. Reasonable reflection of that partiality will hang over this courts ultimate decision in the , if youle care act case refused to recuse yourself. I strongly believe that. Considerourt justices the consequences of their decision on peoples lives. Earlier this year, the Supreme Court ruled against President Trump in his effort to repeal daca protections for dreamers. Children who have arrived in the United States before they could talk or walk. Chief Justice Roberts wrote the opinion that included the crucial vote of ruth bader ginsburg. Attemptt rejected the to end protections for dreamers. Chief Justice Roberts said the administration had not taken into consideration the fact that many dreamers rely on those protections when they start their career and businesses, when they served in the military of the United States, when they bought homes, when they started families. You whetherno asked its appropriate for Supreme Court justices to consider realworld impacts. You are a sitting judge now. My question is, in deciding whether to uphold government actions, do you currently consider the consequences of your ruling on peoples lives . Judge barrett thats part of the decision of every case. Sen harris so you do . Judge barrett every case has consequences on peoples lives. Of course i do. Thats part of the judicial decisionmaking process. Sen harris would you do that if you are actually voted on the United States Supreme Court . Would you do that there was well . Judge barrett considering the resolution of a dispute, how it will affect parties, people, it is part of the judicial decisionmaking process. I will continue engaging in that process to the best of my ability. Sen harris the Affordable Care thanif struck down, more 100 million americans with preexisting conditions like Heart Disease, diabetes, and cancer would pay more for insurance rbn diet denied coverage entirely. More than 20 million americans could lose their Health Coverage entirely, including nearly 3 million black americans and over 5 million latino americans who receive access to Health Insurance because of the Affordable Care act. Insurers will once again be able to discriminate against more than 50 of africanamericans and nearly 40 of latinos with preexisting conditions. Insurers will be able to deny coverage to more than one quarter of native americans with conditions like diabetes, Heart Disease, and cancer. All of this in the midst of a pandemic that is not going away anytime soon. That, when age is taken into account, has been three times as deadly for black, latino, pacific islander, and native americans. A pandemic that has killed approximately one and 1000 black americans, one in 1200 native americans, and one in 1500 latino americans. Consider the 135 Million People who gained protections under the Affordable Care act when deciding the case that challenges that law . Judge barrett if i were to be confirmed and conclude that i was able to sit on the case, pursuant to the recusal statute, if i heard the case and decided the case, i would consider all the protections that congress put in place. As i said earlier, during this hearing, the question would be figuring out whether congress, assuming that the mandate is unconstitutional now, whether that, consistent with your intent congresss law, would ormit this act to stand whether the flawed portion of it could be excised out. Thats a question not of what judges want, of the Supreme Court, its a question of what congress wanted in the statute. That is the statute that you enacted and extended to millions of americans. 135 million americans with preexisting conditions are depending on the protections of the Affordable Care act. What weight would you give that . Judge barrett reliance interests are taken into account. As i said before, its about keeping stability in the law. The law often takes into account reliance interests. I cant really say, sitting here, how they would play in this case. Thats part of the legal calculus of the case. I cant really give you the kind of commitment or precommitment that you are asking from me of how i would weigh factors or structure my decisionmaking process. Sen harris i would ask you to consider, if you are confirmed on the court, the incredible benefit of the afford care act. The destruction of its protections will have devastating impact on millions, hundreds of millions of americans. You testified yesterday that Justice Ruth Bader ginsburg opened the door for many women in law. Believe that to be true as a personal matter. She was a trailblazer for womens economy a quality gender equity. The second woman ever to sit on the United States Supreme Court, Justice Ginsburg broke many barriers for women across the country. I believe we all fondly remember her as a person who had patients. She had the will and the vision to make our country a more equal place, a more just place. One of the things she fought for was the womens rights to control their own body and to make decisions about her body and health care and reproductive choices. The constitution of the United States protects a womans right to choose whether or when to become apparent. A parent. It protects a womans right to choose abortion. Women of color, immigrant women, women with low income, women in rural areas face significant barriers when attempting to access both control, cancer screenings, and comprehensive Reproductive Health care. Moreover, antichoice exodus and politicians have been working for decades to pass laws and File Lawsuits designed to overturn roe and the precedent that followed. The threat to choices real. Last year, the court heard a case that david an opportunity to revisit and overturn its abortion precedent in a case called jim medical services. The Supreme Court struck down a medically unnecessary restriction that would have closed all but one Abortion Clinic in louisiana. Chief Justice Roberts agreed with the courts liberal members, that the court was bound by its own precedent to strike down the louisiana law because it was virtually identical to a texas law that the court ruled unconstitutional in 2016. As a result, women in the state were able to receive the full range of reproductive care. Chief Justice Roberts wrote his own separate opinion in the case to make clear that in the future, he could not be counted on to uphold a womans right to choose. Justice ginsburg provided the critical fifth vote to strike down the unconstitutional abortion restriction. We must be honest about the have on thell courts decision in cases regarding womens access to Reproductive Health care. My republican colleagues have said that theres a minimal chance that the Supreme Court will overturn roe. Back in january, 39 republican senators, including debt 10 members of this committee, signed their names to a Supreme Court brief that asked the court to take up the issue of whether roe should be reconsidered and if appropriate, overruled. Lets not make any mistake about it. Allowing President Trump to determine who fills the seat of ruth bader ginsburg, a champion for womens rights and a critical vote in so many decisions that sustained the right to choose, poses a threat to safe and legal abortion in our country. Trump saidpresident that overturning roe v. Wade will, quote, happen automatically because i am putting prolife justices on the court. Judge barrett, several times today you have quoted Justice Ginsburgs testimony about not making predictions. However, she was far more forthcoming at her confirmation hearing about the essential rights of women. In 1993, Justice Ginsburgs confirmation hearing shows that she testified, the decision whether or not to bear a child is central to a womans life. Her wellbeing and dignity. If the disk its a decision if must make for herself, government controls that decision, she is being treated less than a fully adult human is possible for her own choices. Say, ginsburg went on to its essential for womens equality with man that she be did the disk the decisionmaker. That her choice is controlled. If you impose restraints, you are disadvantaging her because of her sex. Ginsburg did not tell the committee how she would vote in any particular case but she did freely discuss how she viewed a womans right to choose. Judge merrick, your record clearly shows you hold a different view. In 2006, you signed your name to an advertisement published in the south bend tribune. Wade as ans roe v. Exercise of raw judicial power and calls for up to an end to the barbaric legacy of roe v. Wade. 2013igned a similar ad in that describes roe as infamous and expressed opposition to abortion. In 2013, you wrote an article about Supreme Court precedent in which you quoted roe from a list of well cited cases that you said, no justice would overrule even if she disagreed. Suggesting that you believe roe is susceptible to being overturned. You delivered a speech in which you said that the courts recognition of the right to choose was, quote, created through judicial fee at. Rather than grounded in the constitution. During your tenure on the seventh Circuit Court of appeals, you have been willing to reconsider abortion restrictions that other republican appointed judges found unconstitutional. As the Senate Considers filling the seat of Justice Ruth Bader ginsburg, who was straightforward enough in her confirmation hearings to say that the right to choose is isential to womens equality, would suggest that we not pretend that we dont know how this nominee views a womens right to choose to make around health or decisions. Consent that the following documents be entered into the record. The letter opposing judge barretts nomination from the naacp, a statement opposing her nomination from the planned Parenthood Federation of america and planned parenthood action and, and they were part report judging her nomination from the Legal Defense and educational fund. Without objection. Sen harris thank you. Thank you very much. Senator kennedy . Sen. Kennedy i have a letter here in support of judge barrett signed by 281 graduates and former classmates of hers. At the extraordinary st. Marys Dominican High School in new orleans. I would like to offer that into the record. Without objection. Are you tired, judge . Judge barrett im looking forward to the end of the hearing, i must admit. Sen kennedy me too. I will still answer your questions ask you questions. A lot of my colleagues and he was well have talked about the oath that you will take if you are confirmed and sworn in as an associate justice of the United States Supreme Court. Whats in that oath . What does it say . Judge barrett well, that oath requires a judge to do equal justice to all, without fear of favor, regardless of wealth. You know, to fairly apply the law. I give preference to not give preferential treatment or express bias. Sen kennedy you will administer the law in an impartial manner, without regard to your personal feelings. Judge barrett yes it does. Sen kennedy it says you will support and defend the constitution. Serious oath, isnt it . Judge barrett it is. Sen kennedy are you going to take that oath and affirm it if you are confirmed . Judge barrett yes. Sen kennedy you are not lying. Judge barrett not lying. I took that oath before i began as a judge in the seventh circuit. Ive not violated that oath. I would take it again. Oaths are serious to me. Sen kennedy senator harris just called you a liar. She said if you take that oath, you would be lying. That you have already made up your mind on how you will vote on some cases, particularly dealing with abortion and the Affordable Care act. Lets cut to the chase. She said you are a liar. Are you a liar . Judge barrett i am not a liar. Sen kennedy i want you to tell me again. Look me in the eye. Youre in front of god and country. If you take that oath, will you meet it . Judge barrett i will. Sen kennedy do you swear to god . Judge barrett i swear to god. I have sworn at the seventh circuit. I meant it there, he too. Sen kennedy you will never break that oath . No matter what your personal feelings are. No matter what your religion is . Judge barrett no matter what my religion is. Sen kennedy when senator harris and her colleagues say you are a liar, they are wrong . Judge barrett they are. See. Kennedy lets you are 48 years old. You are an honors graduate of rhodes college, and extraordinary liberal arts school. Honors graduate of notre dame law school. You clerked for two distinguished federal judges. Youve been a chair law professor. Christian. Evout youve raised seven children. Wax to mean to metaphysical here. Do you have personal values as a result of this . Judge barrett i would hope that no one would consider me to be nominated for anything if i didnt know values. Sen kennedy do you have personal opinions . Judge barrett of course i have personal opinions. Sen kennedy do you have principles . Judge barrett i have principles. It would not be fit for office if i didnt. Lets suppose that we had a nominee appear before us. It happens to be a man. Said, ive been nominated for a federal judgeship. I finished law school but i hadnt cracked the law books since law school, since civil procedure. And i dont have any opinions. I dont have any principles. I dont read newspapers. I dont even read the news. I havent read a book since law school. Im like pluto and animal house. Im just fat, drunk, and stupid. The oneshe germans are who bombed pearl harbor. Change, i think we didnt cause the cold war. Im your guy. I dont have any values. Im a blank slate. Thats what is required, isnt it . For me to be impartial. Do you think we ought to confirm that gentlemen . Opinion ontt an this issue. Addressing recusal. Someone basically, if reaches middle years, if one would be a justice on the Supreme Court, and had no opinions, one would question such a persons fitness for office. Sen. Kennedy my colleagues seem to think youre only qualified if you have a blank slate. You thought about the world, havent you . Judge barrett i indeed have. Sen. Kennedy have you thought about social problem facing our world . Judge barrett i have created sen. Kennedy economic problems . Judge barrett sure. Sen. Kennedy i dont know what your feelings are, but have you thought about the merits and lack thereof Nuclear Energy . Judge barrett no, i really havent. Sen. Kennedy how about affirmative action . Just as a subject . Judge barrett ive thought about it. Sen. Kennedy how about Climate Change . Judge barrett ive read about Climate Change. Sen. Kennedy and youve got opinions on Climate Change that youve thought about . Judge barrett im certainly not a scientist. I have read things about Climate Change. I would not say i have firm views. Sen. Kennedy have you thought about the merits of a flat versus progressive income tax . Judge barrett i have thought fleetingly about that. These are not things i am not a tax lawyer. Sen. Kennedy i am not trying to trap you. How about Justice Kagan . I have always been impressed with her credentials. Graduate of princeton. Oxford, i think she went to harvard law. Dean of harvard law school. Do you think you thought about the world . Judge barrett i am sure she has, and i am also impressed with Justice Kagan. Sen. Kennedy do you think she has thought about Climate Change and has personal feelings . Judge barrett i dont know. Probably, but i cannot really say what Justice Kagan has thought or not about. Sen. Kennedy you have personal feelings about abortion, dont you . Judge barrett i do have personal feelings about abortion. Sen. Kennedy have you ever thought about how we deliver health care in this country . Judge barrett i do, but senator kennedy, one of the things about the judicial rule that i have repeatedly emphasized today is ive got personal views and personal feelings on a range of matters, just like every human does and just like every judge or justice does. Sen. Kennedy thats what im getting at. My colleagues say and senator harris said even though you have a personal opinion about abortion, that you will violate your oath to put aside those fairlyl feelings and decide abortion cases. Is that true . Judge barrett i gather thats what you were saying to me, yes. Sen. Kennedy is she right . Judge barrett no. Sen. Kennedy lets talk about the Affordable Care act. California v. Texas. You thought about the delivery of health care. Judge barrett yes. Sen. Kennedy youve got seven children. You have probably been to an emergency room. Judge barrett yes. Sen. Kennedy youve formed opinions about the delivery of health care. Should you recuse yourself . Judge barrett senator kennedy, any opinions that i have, everyone has opinions. Any opinion i have are just not relevant to the resolution of the case. The Affordable Care act case or anything else. A lot of my opinions are not ones that are expert. For example in scientific matters, taxing matters, i may have dinnertable discussions but i am not an expert. Sen. Kennedy this is serious. Judge barrett ok. Sen. Kennedy some of my colleagues and senator harris say you are lying. Are you lying . Judge barrett i am not lying. Sen. Kennedy are you going to take that oath and abide by it . Judge barrett yes. Sen. Kennedy will you have a break that oath . Judge barrett i will not. Sen. Kennedy one of my colleagues, i dont rooem ember which one, said that because President Trump nominated you that if theres is a case that happens to go to the United States Supreme Court after you are confirmed dealing with the election, they asked you to recuse yourself. Remember that . Judge barrett mmhmm. Sen. Kennedy you said you would go through the process. Judge barrett of determining recusal sen. Kennedy you did not commit to recusing yourself. You said you would go to the process. Judge barrett i committed to going through the process of determining whether to recuse. Sen. Kennedy now, President Trump nominated judge kavanaugh, now Justice Kavanaugh. Do you think anybody would ask him to recuse himself when the president s tax reforms were before the court . Judge barrett i dont know. Sen. Kennedy just aice gorsuch was confirmed by the senate. Did anybody ask him to recuse himself when President Trumps tax reforms were before the court . Judge barrett i dont know. Sen. Kennedy do you know who paula jones is . She sued the president of the United States. Judge barrett president clinton. Sen. Kennedy clinton v. Jones, famous case. President clinton nominated Justice Ginsburg and Justice Breyer to the United States Supreme Court. They heard that case. Did anybody ask Justice Ginsburg to recuse herself because president clinton nominated her . Judge barrett i dont know. Sen. Kennedy do you think she should have . Judge barrett that is not something i would opine of. Im sure she discharged her oath. Sen. Kennedy denny out of my colleagues ask that Justice Breyer recuse himself from hearing clinton v. Jones because president clinton appointed him . Judge barrett i dont think so. Sen. Kennedy i dont think so either. I will finish this housekeeping because i want to talk about the law. I want to give you a chance to respond to something. At bostona Professor University says that because you and your husband have two youre aof color, that white colonist. The implication is you are racist. And you use your two children as props. Do you use your children as props . Judge barrett senator kennedy, it was the risk of people saying things like that which would be so hurtful to my family that when i told senator graham this morning that my husband and i had to wave across this, it was saying deeply offensive and hurtful things to me and my children. Who are my children, who we love and who we brought home and made part of our family. And accusations like that are cruel. Sen. Kennedy yeah, they are, arent they . How low can you go . I didnt want to ask that question when your kids were here. Im sorry you have to go through that. Ok, lets talk about the law. Will not ask i you how you will rule on a case. You couldnt cancer anyway, you would violate the judicial canons of ethics. I dont know what would happen to you but it would probably be pretty bad, because you are a sitting judge. Lets suppose that a litigant lets suppose Congress Passed a statute making distinctions on the basis of wealth. Judge barrett ok. Sen. Kennedy and somebody filed a lawsuit and said that that argument is well as a suspect classification. How are you going to analyze a case like that . Tell me how you would analyze it. I just want to know how you think. Judge barrett if someone argued wealth is a suspect classification, i would assume you are saying they are probably making an equal protection claim. So, i would go to precedent would be the first source because equal protection clause has a rich body of precedent under it that identifies suspect classes. Theexample, classes on basis of race get heightened scrutiny. I would look through Supreme Court precedent to determine if there was anything relevant to the question of whether wealth was a suspect class were not. Or not. Sen. Kennedy you are familiar with senator tonio School District v san antonio School District v. Rodriguez. Judge barrett my mind is getting mushy. Sen. Kennedy wealth is not a suspect classification, is it . Judge barrett i am not aware of a case. Sen. Kennedy here is what i dont understand. Remember this is Congress Passing the statute, not some state. Pursuingitigant is not this under the 14th amendment, he or she is pursuing it under the fifth amendment. No, making a substantive hes making an equal protection argument. Not due process, that would be a fundamental right. Where does the fifth amendment mention equal protection . Judge barrett the fifth amendment has a due process clause. Sen. Kennedy the 14th amendment has a due process clause and equal protection clause, which applies to the states. But the fifth amendment to the constitution has a due process clause, but it does not say a word about equal protection. Judge barrett that is true but the Supreme Court has interpreted it as applying equal protection clause as well. Sen. Kennedy how can they do that if the words are not there . Judge barrett theres a case, i believe in which the case the court addressed this was the one that addressed the competition analogy of segregation in the District Of Columbia which is governed by federal law. And the court said the same principle applies. Essentially, the reasoning of brown applies there. Sen. Kennedy ok, i remember that. I went backut and took a look at scalia wrote the majority opinion. I think stevens wrote the leading dissent. It was interesting they both took an originalist approach. Scalia relied on tell me what an originalist approach is again . What is your strain . Judge barrett you take the constitution in heller, what Justice Scalia did, and this is an example of original is. He went back to the ratification of the Second Amendment to figure out when that amendment was ratified, whether that right to bear arms was considered an individual right or one that was a civic right. Sen. Kennedy considered by whom . Judge barrett by the people at the time, not in the minds of the framers. Sen. Kennedy sorry. Judge barrett no. Sen. Kennedy im having a little coffee. Im kind of jacked up. I went back and looked it up. Onlia, he relied foundingera dictionaries, english laws, american colonial loss, british and american historical documents, colonialera state constitutions, postannett enactment commentary. Here comes justice stevens, hes dissenting. He relied on in his dissent, he relied on linguistic professors 18th century treaties on alias, on which scill arrived. Heres to my question. When did justices become historians . Let me put it another way. If this is the way we are going to interpret the constitution, by looking at history, why do we need you guys . Why dont we have professional historians . So justicest well, and judges interpret laws, and we interpret text. Unclear, you have to figure out what their meaning is. Sometimesstitution, that does require delving into history. That Justice Scalia would make, the alternative is lets say you have an amendment like the Second Amendment right to bear arms. If it is not evident looking at it whether it is an individual right or collective right, one approach would be to rely on the moral judgments of the judge, of the justice, to say whether they think it is a good thing or bad thing for the common good for people to have an individual right. Judges are not moral philosophers either. When you are interpreting the text, you need to turn to something, what judges know as words and law. Having them go back and look at the history, those are familiar things. I think all justices consider, as i said earlier in the hearing, all justices do consider the history of original meaning. That has been true since the beginning of the court itself, throughout the 19th century, the idea of original iism is not new. Throughout the 19th century and the 20th, the court has resorted back to see what the original meaning is. I would say the difference between those who identify themselves as originalists and those who consider it is the amount of weight they give it. All justices have to do it to a degree because everyone agrees as a matter of law, the original meaning matters. Sen. Kennedy tell me what the ninth amendment means. Judge barrett the ninth amendment was once famously described as an ink blot. The ninth amendment has not been fleshed out in litigation. I dont think it is an ink blot, just to be clear. But, its not one that theres a whole lot of case law on. Sen. Kennedy i want to talk to you a little bit about originalism, or at least your toain, and how it is related textualism. From it is different did i understand you correctly to say an originalist believes the judges have to follow the original public meaning of the constitution . Judge barrett correct. Sen. Kennedy the original public meaning. Judge barrett public meaning as distinguished from private intentions of those who drafted the document. Sen. Kennedy does this mean, when you see original public meeting, whose meaning . The average person in the community at that time . Judge barrett we would say informed observers. I would say informed observers. Those that are familiar with the debates. Which is why looking at the state ratifying conventions, debating the cuss addition can be a fruitful source. Sen. Kennedy i know its not ok to do it exclusively, but is it ok to consider with the drafters thought . Judge Barrett James madisons notes from the cuss Additional Convention Constitutional Convention is a source we look to, but it is not conclusive. Sen. Kennedy what is the dimension of time . At what point in time do you look at the original public meaning . Judge barrett i would say theres some debate about that because you will necessarily have all the evidence you need right from 1791 which is when the bill of rights was ratified. I think looking at the evidence from before that, we see that in heller. Justice scalia looked at how people understood that right leading up to the ratification of the Second Amendment because it cast light on the language people were speaking at the time and how they would have understood it. You can definitely look some before. Sen. Kennedy ok, if you look at 10 years after the constitution, is that ok . How about 20 . Judge barrett i think all of that can be relevant evidence. I think the farther that you get away from the ratification of the document, then i think the dicier it gets because we might 1801, that 1791 and people have roughly the same understanding. But of course, as time passes, then attitudes can change. I wouldnt say there is a certain cutoff, but i think it is clearly the case the evidence that is closer to the time is the most probative. Sen. Kennedy whats the difference between originalism and textualism . Howe barrett textualism is we describe a method of interpreting statutes. It actually, in many respects, is kind of originalism applies to a statute. You take statutory texts for theclean water act or antibarrett act passed today, you would look at what the words would have meant to those of the time and informed observers of the debate. Sen. Kennedy you are looking at the ordinary meaning of the words . The plain meaning of the words. Judge barrett the plain meaning of the words. Sen. Kennedy what if they are unclear . Judge barrett well, there are a series of canons of interpretation that judges employ to decipher language, like linguistic tools. Sometimes it implies the expression of some things sen. Kennedy you know better than i do. But if thie statute is unclear, if theres no original meaning, can you look at legislative history . Judge barrett generally, i think legislative history is the last fruitful source because generally when people make arguments about legislative history, they tend to be less about what a word meant and how a statute would apply to a Certain Circumstance which is a little bit different. Sen. Kennedy if its ambiguous, you can look at legislative history as a last resort . Judge barrett you can look at legislative history to determine whether there was a particular understanding of a word or a phrase. But, i think it would be in most cases inadvisable to look at legislative history to make a determination, certainly not to treat it how a statute would apply to a set of facts. Sen. Kennedy how ambiguous a if thet would say statute is ambiguous, if it is unclear, i could consider secondary sources. How ambiguous does it have to be . 51 . 65 . How do you know how ambiguous . Judge barrett its not a precise it is an art, not a science, i would say, senator kennedy. You exhaust all the canons of interpretation and that includes even ones that are not the grammatical canons, that are likely avoidance canon. You run through all of those and then you look at the structure of the statute. I think deciding when something crosses the threshold of becoming ambiguous to be considered canons likely avoidance canon, that is a very difficult question. Hard to debate about the chevron doctrine. Term propose the now. You correctly look at the statue even if it is clear. I can still look at secondary sources and try to figure out what problem the legislative body was trying to solve. Judge barrett that is so, yes. The purpose of this would say to be faithful to congress would be to be faithful to the purpose of the statute and sometimes the text does not align exactly with the purpose. In that circumstance, the judge should go with the purpose rather than the text. Sen. Kennedy everyone is a ualist now. Go, i hoperds, they the language of the statute, its unclear, so i checked off the originalist, rather textual look andi can go see what Congress Wants to decide and do what i want to do. Judge barrett there has been some academic commentary definitely in the last five or 10 years saying that has become the new strain of textualism. You might know the case wholly trinity. Sen. Kennedy it has been overruled though . Judge barrett its approach to statutory interpretation . It has never been overruled, but it has gone out of favor. This idea of doing what you are saying, stretching to find ambiguity in text, the argument that some make is it is a new form of holy trinity because rather than saying the text is clear but inconsistent with a purpose, the argument is that the purpose renders the text unclear. Sen. Kennedy let me ask you a couple more. I want to talk about a state constitution. In louisiana, we had a Constitutional Convention in 1973. We wrote a new state constitution. We recorded everything. We got, i think 14 volumes of transcripts, committee reports. Anything you could possibly want to know about the drafting of the 1974 louisiana constitution. Are you telling me to just throw all that stuff out . Judge barrett no. Those things would be the equivalent at looking at James Madisons note from the Constitutional Convention or state ratifying convention. All those things shed light on what louisiana ands were thinking when that constitution was drafted and ratified. Sen. Kennedy ok. Mr. Chairman, i want the record to reflect that i landed this plane with 26 seconds left. Sen. Graham so noted. Thank you very much, senator kennedy. Senator blackburn. Sen. Blackburn thank you. I have three letters to submit. Of from penny nance, the ceo concerned women of america, on behalf of that organization. Amer, chairperson of women for america first, on behalf of the organization. They are both in support of judge barrett. And a letter of tennessee secretary of state who is applauding her record on textualism and stands in support of her nomination. Sen. Graham no objection. Sen. Blackburn judge barrett, you have been a trooper so we are going to do a little bit of loose ends tying up and then get you on your way. And we appreciate the commitment you have made. I tell you what, my hat is off to you. You have been great to be here today and to stand right with her. I tell you, i wish my husband were here. We were talking a little earlier today about, when i called him, about how you have been right here, hardly leaving the chair the entire time. And we appreciate that. My husband has said hes going to someday write a book and going to call it i carried her purse. Because we couldnt do what we do without supportive spouses. First thing i want to say, and senator ernst touched on this, our colleagues across the aisle have spent a lot of time talking about covid relief and the importance of that for health care for people that are suffering. They have the opportunity. We can put our bill back on the floor. They each chose to vote no, every single one of them, on additional ppp, Unemployment Insurance, money for testing and vaccines, getting schools open and Liability Protection so that businesses can open. We would be very pleased to have that bill back on the floor and to pass it to get needed relief to the American People. The second thing i want to touch on, i think theres been a little bit of confusion with some of the comments that were made. Its important to note that abortion is not mentioned in the u. S. Constitution. Judge barrett the word abortion does not appear in the u. S. Constitution. Sen. Blackburn that is correct. Roe v. Wade is not an amendment to the constitution. Judge barrett roe v. Wade interprets the 14th amendment in because edition and locates the right to terminate a pregnancy and the liberty. Sen. Blackburn i think that from some of the comments from some of our colleagues, there has been confusion about that. Senator thing is whitehouse kind of came at you, saying that youve never tried a case, and i think it is important to note that Justice Kagan had never tried a case. We want to have that shes been mentioned several times today. As a point of clarification, we would want to mention this. One thing that we have heard a good bit about in this committee and some of our colleagues chose to mention this yesterday is that republicans dont nominate enough female judges. But, when we nominate a highly qualified woman for a Supreme Court vacancy, what is the very first thing they do . They turn their attack machine on. And then they start into the politics of personal destruction. Notthey attack you for being for not fitting into the paradigm of the left because you are prolife, profamily, proreligion. And we have seen this happen with other judges that have come before us. Judge naomi brown, wendy vetter. They have been criticized. If you dont buy into this agenda of the left, if you are female, then they act as if you are not a real woman. , quitewill tell you frankly, they do not believe that all Women Deserve to have the opportunity to have a seat at the table. It is only certain women and we have seen their liberal narrative play out today. S when sherono on thi suggested that you of all people would not support women in the workplace. And, i will tell you this as a woman who has worked in the private sector and been in Public Service, when comments like that are made, it discourages all women. From trying to step forward and trying to take the skills that they have developed in one area of their life and then use it as an opportunity to serve their nation, to serve their community, because they dont want the liberal tattack machine pointed at them. And i will tell you, quite frankly, it is so discouraging to me to see groups on the left say we want diversity, but let that diversity come from a woman right on the political and its like their heads explode. They do not want that as a part of the conversation. What they prefer to have is a very narrow, liberal viewpoint. I look forward to the day when that will stop because all Women Deserve the opportunity to rise. So know, i find it interesting that they dont want to support women from the political right because we do not submit to the leftist agenda. We wont submit to that. So then, freethinkers end up being called bad women and tra itors to our gender and other disparaging comments that are out there. And you have endured some of these pretty extraordinary revelations today, many of which accusations that you are part of some sort of backroom conspiracy to rig the system against the American People and that your record as a judge is somehow frightening and going to cost a panic. But i have a feeling that this is not the first time you have heard such rhetoric or have been subjected to such rhetoric by a group of your peers that have probably tried to hold you back because of your personal beliefs. I think that most of us that come from the political spectrum on the right have endured that. A professional organization that would have been nice to join, but because you are prolife, you cant. Wanted,not participation not wanted because you are proreligion. Profamily. Opinion not want to. Do not apply for admission. And this is the kind of wrongheaded perception that needs to stop. It is not uncommon for women who practice their faith or who hold prolife views to endure this, especially in a professional context. That is what we have seen the left throw at you today. Interestingit so that they have tried to use this focus to evaluate your professionalism as a judge. Exactly what they say they despise. Interesting take. Id like to hear a little bit more about the intellectual and personal discipline you mentioned during senator lees line of questioning. Lets go back to that. You said that discipline is required from resisting the urge to exercise your own will when deciding how to rule on a case. So, talk for just a second about that. Why its important to stay true to your basic constitutional statutory framework rather than favoring the living constitution approach . Well, senator blackburn, i think as it came up with senator lee, i know senator hawley too, that judges are not policymakers. We live in a Pluralistic Society where we have lots of different views on lots of different matters. Senator kennedy was pointing out. So, in a Pluralistic Society, i may approach a particular problem lets say a problem of constitutional law, and i may really feel like the results i want is one way, but i am just one person. And there are surely other people in america, other people thehe bench who would see best resolution going a different way. So, who am i or who is any judge to say that their result oh, just this once i will reach the result that seems the best even if it runs against the law that the people have ratified. So, it would be wrong i dont think want to live under the law of amy. We have the United States constitution and thats what judges should be faithful to. Sen. Blackburn i think probably the law of amy prevails at the barrett household over those children. [laughter] judge barrett 5050. Sen. Blackburn i used to tell my children. My sons birthday was today, we were chatting earlier. We were laughing about how i want them to do something that they did not necessarily want to do, i would remind them that i was the chief mama in charge. It was something that was going to happen. Let me touch just a second on obamacare. Because they have, our friends across the aisle, have seemed to express a deep concern about a case that is coming up on november 10. And how this would take obamacare down. Again, this goes into their fear mongering and causing panic, and we know that. Because it is not about the aca case that is scheduled for november 10. This is all about their concern that a constitutionalist judge on the Supreme Court just might get in the way of their push to implement government run health care. To do a socialized medicine plan or to do the Green New Deal or to statehood for d. C. Their wish list of items that they have. But, we do, for the record, need to clean up the numbers that are around this. We have heard some wild numbers get thrown around today when it comes to the aca. 8. 3e are, right now, million americans enrolled in the aca marketplace exchange, enrolled in obamacare. Is what they are doing blowing that number up. They have tacked on the entire individual market and added medicaid and medicare to get to their number that they are say ing is 150 million americans are going to lose their health care. What theyre not saying is there are 153 million americans that are in the private Health Care Marketplace. So, if they got their way, everyone of those individuals in their private Health Care Marketplace would lose their Health Insurance. Certaingoal is to make that all americans have access to Affordable Health care. And i think it is a bit. 3singenuous the way that 8 million is the number that comes to us from cms and hhs. Then, as i said, they are blowing that up by adding the entire individual market and medicaid and medicare. And forgetting to mention that americans that have a private Health Insurance. My colleague from california would really like to have people believe that your sole mission in life is to overturn the aca, and that you have stated you are not on a mission to overturn the aca. Judge barrett im not, senator blackburn. I have no mission and no agenda. Judges dont have campaign promises. Sen. Blackburn thats a good thing. I have made much about a letter you signed opposing contraceptive mandate and an article you wrote criticizing an interpretation of the aca. I had a very interesting conversation today, actually did a Facebook Live with one of your former students who had written an oped for real clear politics. Chase . Said, one of the things he appreciated about you is that you made your students think. And i think that is a wonderful because whatudge getdid was to cause them to into problemsolving at a time when we lived in a cancel culture, that is a very positive thing to have students do. To cause them to think. So, we really appreciate that. And i know you have stated you are going to put aside personal opinions and abide by the constitution when it comes to the cases thatof would come before you. Lets move on. Went to the Fourth Amendment with you, and i want to touch on this pertaining to electronic searches and surveillance. The Fourth Amendment is so important for safeguarding the privacy of our citizens and our data from unreasonable search es and seizures. And so Many Americans are doing so much of their life online and i think its imperative that americans have the ability to whicht their virtual you, is their presence online, their data, their transactional life. For so many people, it is the way they are working. And as you said at the White Academy inony, the which you coprincipled, people are going to school online. Case, carpenter v. U. S. , and it outlined how far the constitution protects searches of electronic evidence. It was a 54 decision and the court ruled Law Enforcement must obtain a warrant in order to track a persons cellular Location Information beyond seven days. Justice thomas and gorsuch both dissented, and Justice Gorsuch objected that the majoritys reasonable expectation of privacy was not faithful to the Fourth Amendment text. Gorsuch recente the Fourth Amendment protects only those searches included in the original text. Houses, of persons, places and effects. Lism critics of original iis complained that todays laws should not be ruled by the dead hand of the past. Can you explain how the Fourth Amendment can still govern the modern world searches and seizures, and how will it continue to apply to emerging technologies that the founders never could have imagined . Judge barrett sure. General matter, the Fourth Amendment protects against unreasonable searches and seizures. It doesnt mean that it protects only the kinds of searches and seizures that those who live at the time of the adoption of the bill of rights could have anticipated. Surely, they could not have anticipated the internet or cell phones or airplanes, for that matter. One can reason from the kinds of privacy protections that were in place in 1791 when the Fourth Amendment was ratified to see if the search of modern technology now is analogous to it. So one example is the kylo case. Justice scalia wrote the opinion on that case. That is a case where Law Enforcement used an infrared detector to see if someone was growing marijuana on the inside. They could use the infrared to see if it lit up, people were using heat lamps. Justice scalia said, yes, that was a search. The Fourth Amendment did apply, even though that technology did not exist at the time. It was the same kind of invasion into the home, so it didnt matter infrared machines were not in contemplation of the generation that ratified the Fourth Amendment. Sen. Blackburn ok, then, is there a difference between deviceng for data via a that is in a persons possession and searching for, say, data on the servers that are hosting . Judge barrett that would be a question i probably cannot answer, in addition to the Fourth Amendment, there would be statutes that govern how much data one could mine. That would be one of those legal hypothetical situations that i wouldnt be able to answer in the context of the hearing. Sen. Blackburn all right. Lets end it at that so that you can get out of here. There are a couple of things tomorrow we will have time and we will talk about a couple of those other questions. Campus free speech, executive overreach, a couple of other things we would like to have on the record. But, thank you very much for your patience and for your desire to serve. Judge barrett thank you. Sen. Graham thank you. I would like to echo what senator blackburn said. You have been very patient, very poised and i really appreciate the way you have handled yourself. I quite frankly think this has been a good example of what can be in the Judiciary Committee. Challenging questions on things that matter to people and a way you can leave the arena saying, well, that worked pretty well. One more day. 20 minutes apiece. See you at 9 00. [captions Copyright National cable satellite corp. 2019] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] the majority number. Sen. Graham i think it is important for the country to see the nominee. I have been very impressed with her. The vacancy has been open due to the tragic loss of Justice Ginsburg. I think President Trump has chosen an outstanding woman in the law, and we are going to fill this vacancy. We will be voting october 22. If things continue the way they have been going, i think we will have a good vote for the judge on the floor. Is it going to help republicans . Sen. Graham i guess it depends on what state you are in. I think it helps to see someone highly qualified go onto the court. I just want to stress this. Im a republican, conservative men. Republican conservative women have a tough time sometimes. I just want to thank President Trump for creating a seat at the table for somebody who is going to champion prolife, someone who embraces their faith, but someone who understands the difference between personal views and judging. To me, in this process, no one even thinks to ask the prochoice nominee anything about what you do this, would you do that . Im glad that an unashamedly prolife person will be nominated to the court, but most of poorly, i hope the people of the country no personal feelings will not dictate how she decides. I the Affordable Care act think it is pretty clear to me that the doctrine suggests you save a statute if possible. I dont know how shes going to rule, but its clear she understands that area of the law. I will ask her more about that. She is not trying to give us any hints or productions, but i just want people to understand how the law works. If you are a conservative, you need to understand that the conservative position is to have legislative, not strike them down. How much do you think her Performance Today affects your efforts to keep the Senate Majority sen. Graham i can just say in South Carolina, people like conservative judges. There is a preference for conservative Supreme Court justices. I think thats a fact of how our state stacks up. It probably will be different in different states. I take away that if you are a young woman, conservative young woman, i hope this gives you some hope that americas changing. That everybody can come to the table, the entire slice of the american pie. Backlash with moving ahead with this nomination . Sen. Graham it people look at judge barrett and determine their opinion based on a qualifications, i think people will be reassured this is a high quality person. If it cost you your seat . Sen. Graham not even a remote consideration for me. Trust me, i know South Carolina. Amy barrett fits South Carolina pretty well. What do you and other embattled republicans look to do to salvage sen. Graham i will just say this ive been following my race pretty close, probably closer than most. I am working hard. I am being challenged unlike any time. I like where i met. Ive always know where i am at. In my state, conservative judges are preferred over liberal judges. In terms of how this affects the election, time will tell. In terms of her qualifications to be on the Supreme Court, i think it is beyond questioning that she is qualified. Me werer and kagan to actually wellqualified. They had different political views, but it never crossed my mind that they were not qualified. If you apply that standard to judge barrett, i think we are in good shape. Thank you. Are you going to campaign this weekend . Sen. Graham i think so. What is today . Tuesday. If he thinks hes going to airdrop one or two items and call it a day, he is overlooking the obvious. We have millions of americans unemployed that i not going to be receiving their weekly checks they need to survive. We have businesses that need help. Acrosstheboard, state and local governments. The list is comprehensive. He knows it. Somehow, he is arguing for small ball with the president saying lets have a big idea. Wouldnt it be a breakthrough if the president and senator mcconnell got together and put together something is a republican proposal so we can get this done i think the people across this country are fed up and frustrated by the fact we are sitting in this room contemplating a new Supreme Court justice at a time when they are contemplating when the next meal is coming from. To me, this Senate Republican majority is out of touch with reality in this world. Maybe this is what senator mcconnells hearing in kentucky, but i doubt it. Sen. Blumenthal it is very simply a fig leaf. He is feeling the heat which we are raising in this room that republicans are rushing and jamming through a nominee who will take away health care in the midst of a healthcare crisis. So, he feels shame and embarrassment, as he should. Hes trying to provide that fig leaf for himself. Senator durbin sen. Durbin good question. No conversation today. What about via Committee Vote . Will t democrats be boycotting that . Sen. Durbin i dont believe any decision has been made. The Committee Vote and the floor vote as far as strategy is concerned . That is going to be discussed with you and leader schumer . Sen. Durbin we will talk about the next step. As i mentioned earlier, chairman graham has decided to accelerate one of the stages of the hearing. I dont think weve had a conversation yet among ourselves on how to react to it. They are hellbent on getting this done as fast as possible. At least four of them are in reelection campaigns. They want to get out of town as fast as they can once they get the job done. Sen. Blumenthal as you can see in the committee room, they are running away from the issue as fast as they can. They dont want to talk about health care and what she may do to it. They dont want to talk about any of the issues where the American People are against them. The sooner they can get the escape hatch, the better. Oftentimes a vote on a nominee in this committee gets held over for a week. Do you have confirmation from the chairman that it wont be held over and the vote will actually occur . Sen. Durbin holding it over a week is a tradition of the committee. We hope that chairman graham will abide by it. Shat it is held over from i going to be from thursday or sometime next week. We dont know the answer to that. Ok, thanks everyone. Sen. Blumenthal thanks. If you missed any of todays Supreme Court confirmation hearing for judge Amy Coney Barrett, head to our website to watch the hearing in its forrety or search portions of interest online. On tomorrows washington journal, we will get your reaction to the confirmation process by taking your phone calls and text messages. Washington journalism live every morning at 7 a. M. Eastern. And following washington journal, the third day of the cover Mission Hearing resumes with judge barrett taking more questions from Committee Members who each have up to 20 minutes. That gets underway at 9 a. M. Eastern live on cspan and cspan. Org. You can also livsten live on the free radio app. You are watching cspan, your unfiltered view of government. Created by americas Cable Television company as a Public Service and brought to you today by your television provider. Now, we take you back to this morning when judge Amy Coney Barrett began taking questions from members of the Senate Judiciary committee for day two of her confirmation hearing. Each member had 30 minutes to
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