Of their choice, including abortion, Voting Rights, the Affordable Care act, and religious liberty. [gavel banging] good morning, everyone. Welcome back. Judge, thank you. A good day yesterday. Your family did great. Cleanup well. You look good. The game plan for today is to do our first round of 30 minute questioning. Each senator will have 30 minutes to interact with judge barrett and then we will follow up with a second round of 20 minutes. We will not get it done today, but we should get through the first 30 minutes and then come back wednesday and finish up and then we will go about our business. I will make sure i stay within 30 minutes and if i can shorten it, i will. Let us get to it. You can start the clock. You can relax a bit, judge, and take your mask off. Yesterday, we had a lot of discussion about Affordable Health care. What i am going to try to do briefly this morning is demonstrate the difference between politics and judging. All of my colleagues on the other side had very emotional pleas about obamacare, charts of people with preexisting conditions. I want to give you my side of the story. This is lindsey graham, senator from South Carolina talking. This is not a question directed at you. From my point of view, obamacare has been a disaster for the state of South Carolina. All of you over there who want to impose obamacare on South Carolina, we do not want it. We want something better. Want something we want Something Different you know what we want . South carolina care. Why do we want that . Under the Affordable Care act three states get 35 of the money, folks. Can you name them . I will help you. California, new york, and massachusetts. They are 22 of the population. Senator feinstein is from california, nancy pelosi is from california, chuck schumer, leader of the democratic senate, is from new york, and massachusetts is elizabeth warren. Why did they get 35 of the money when they are only 22 of the population . That is the way they designed the law. The more you spend, the more you get. What does it mean for the people of South Carolina . If you had a per patient formula where you got the same amount from the federal government to the state whether you lived in San Francisco or columbia or new york city, if you leveled that out, it would be almost 1 billion more for us in South Carolina. To my friends over there, we are going to fight back. We want our money. If you are going to have money allocated for obamacare, we are not going to sit back and quietly let you give 35 to california. Three state. Three states. The Revenue Streams are uncertain. 30 increase in premiums in South Carolina for those on obamacare. I was on obamacare for a few years. My premiums went up 300 , my coverage was almost nonexistent. A 6,000 deductible. I want a better deal and that is a political fight. I am in a campaign at home. If it were up to me, we would block grant this money, send it back to the state in a more fair allocation, and we would require preexisting conditions to be covered as part of the block grant. We want sick people covered, but have an idea. I think South Carolina may be able to deal with diabetes better than california. If you want good outcomes in medicine, you need innovation. The best way to get innovation is to allow people to try Different Things to get better outcomes. The debate on health care is consolidating all the power in washington, have some bureaucrat you will never meet running this program versus having it centered in the state where you live. Under my proposal South Carolina would get almost 1 billion more, the state would be in charge of administering obamacare, they could build could not build football stadiums with the money. They would have to cover preexisting conditions. But as a patient in South Carolina, you would have a voice you do not have today. If you did not like what was happening to you, you could go to local officials and complain. The people you are complaining to live in your state. They send their family to the same hospital you go. That is the structural difference. That has got nothing to do with his hearing. It has everything to do with politics. We, on the side, do not believe obamacare is the best way to provide Quality Health care over time. Our friends on the other side, this is a placeholder. If you do not believe me, ask them. That is the fight going into 2020. Does it make them bad . It just makes them different. Bureaucrats would not be administering health care from washington. If it were up to me, we would get more money under obamacare. 35 would not go to three states and sick people would be covered. That is the political debate we are involved in. My fate will be left up to the people of South Carolina. That is what obamacare is about. How do you play into this, judge . There is a lawsuit involving the Affordable Care act before the Supreme Court. We will talk about that in a bit. The difference between analyzing a lawsuit and having a political argument is fundamentally different and i hope to be able to demonstrate that over the course of the day. I hope my colleagues on the side of the aisle will not feel shy about telling my colleagues on the other side of the aisle why we think we have a better idea on health care. The bottom line here, judge, you said yesterday that struck me and i want the American People to understand what you meant. You said you are an originalist. Is that true . What does that mean, in english . We all love senator lee, but in english. In english, that means i interpret the constitution as a law. I interpret the text as text, and i understand it to have the meaning that it had at the time people ratified it so it does not change over time and it is not up to me to update it or use my own policy views into it. In other words, you are bound by the people who wrote it. That keeps you from substituting your judgment for theirs . That correct . Correct. Justice scalia is an originalist, correct . Yes. Some say you are a female scalia. What would you say . Justice scalia was a mentor and as i said when i accepted the nomination his philosophy is mine. He was a very eloquent defender of originalism and that was true of textualism which is how i approach statutes. For textualism, the judge approaches the text as it was written with the meaning at the time. But i want to be careful to say if i am confirmed, you would not be getting Justice Scalia. You would be getting Justice Barrett and that is because not all originalists agree. Neither do text to ellis. Textualists. A friend of mine teaches a class called scalia versus thomas. I will wait until the movie comes out. [laughter] the bottom line for me is there is a narrative building in this country and this is just me speaking for me. Justice ginsburg was an iconic figure in american history, just not the law. She was a trailblazer, she called for better conditions for women throughout society, she was progressive and her personal thought, she was devout to her faith, she worked for the aclu, proudly prochoice, but all of us on this side apparently when they voted accepted she was highly qualified. I want the American People to know i think it is ok to be religiously conservative. I think it is ok to be personally prochoice. I think it is ok to live your life in a traditional, catholic fashion and you can still be qualified. All of the young, conservative women out there, this to me is about a place for you. I hope when this is all over there will be a place for you at the table. There will be a spot for you at the Supreme Court like there was for judge ginsburg. To President Trump, i dont know if you are listening or not, but by picking judge barrett you have said you find value in all of these characteristics. Beyond anything else you find judge barrett to be highly qualified. I think you are one of the greatest picks President Trump could have made and one of the most qualified people of your generation. Let us talk about brown v. Board of education because senator blumenthal will. [laughter] you said in writing it was a super precedent. What did you mean . In my writing, as a professor, i talked about the doctrine of stare decisis. Super precedent does not come from the Supreme Court. I think maybe in political conversation or newspapers people use it different ways. In my writing, i was using a framework that has been articulated by other scholars and in that context, super precedent means one that is so wellestablished it would be unthinkable it would be overruled. There are about six cases on this list scholars have identified. Let us talk about brown and why it would be unthinkable. First, let us talk about what is the process that would lead to it being overruled . What would have to happen . For brown to be overruled, you would have to have congress or some state or local government impose segregation again. Let us stop there. If you want to make yourself famous, you can say we want to go back to segregation. I promise you, you will be on every cable tv channel in america. I doubt if you will go very far, but the point we are trying to make is the court just cannot wake up and say, let us revisit brown. It has to be a case in controversy. That is right. Before a decision could be made somebody would have to be dumb enough to pass a law saying, let us go back to segregated schools. Is that fair to say . That is fair to say. Do you see that happening anytime soon . I do not see that happening anytime soon. I do not either. Let us talk about the heller case. What is that about . That was decided by the Supreme Court which held the Second Amendment protects an individual right to bear arms. My friends on the left, some of them have a problem. They may try to challenge the construct of heller. If a state or local government passed a law, what would happen . In defiance . Challenging the construct of heller. That challenged the construct of heller, if it was brought in binds. Court, heller lower courts always have to follow Supreme Court precedent. If the Supreme Court wanted to revisit heller, what would they do . If someone challenged heller below, because a state or local government passed a law contradicting heller, the Supreme Court would have to take that case once it was appealed. The court would have to decide, yes, we want to overrule and we have enough votes and then do so. That is the way the process works. Yes. It would start because there is a law, then lawsuit, then appeal, then the court rented and thesearch cert, court decided the case. Is that true no matter what the issue is . Whether it is gone, abortion, health care, campaignfinance . Does that process hold true for everything . Yes, judges cannot just wake up one day and say, i have an agenda, i like guns, i hate abortion, and walking like a royal queen and impose their will on the world. You have to wait for cases and controversies which is the land which of the constitution to wind their way through the process. All right. I hope that is the basic lesson in law. If the state said, i do not think you should have over six bullets, and somebody believed that violated the Second Amendment, there would be a lawsuit in the same process would work, right . The same process would work. In that case, parties would have to sue the state arguing that the law was unconstitutional. It would wind its way up and if it got to the Supreme Court, and if the Supreme Court decided to take it, a whole decisionmaking process begins. You hear arguments from litigants on both sides. They write briefs. You talk to clerks as a judge, talk to your colleagues, and then you write an opinion. They circulate and you get feedback from your colleagues. It is an entire process. It is not something a judge or justice would wake up and say, i know what my vote is going to be. Let us talk about the two Supreme Court cases regarding abortion. One of the two leading cases in america regarding abortion. People think of roe v. Wade and casey is the case after that , that upheld the central holdings, but grounded in different rationale. What is that rationale . Rationale that the state cannot impose undue burden on a woman choosing to terminate a pregnancy. Stateine, there are challenging on the abortion. There are state with Something Like the fetal heartbeat bill. I have a bill that would disallow abortion on demand after 20 weeks, the month of april. We are one of seven nations in the world that allow abortion on demand into the fifth month. The construct of my bill is because the child is capable of feeling pain in the fifth month, doctors tell us to save the life you have to providing provide anesthesia. The argument i make is if you have to provide anesthesia to save the life, it must be a terrible death to be dismembered by abortion. That is a theory to protect the month. At the fifth if that litigation comes before you, will you listen to both sides . Of course. I will do that in every case. 14 states have already passed a version of what i described. There really is a debate in america on brown v. Board of education about the right of the unborn. That is one example. So, if there is a challenge coming from a state, the state passes a law and it goes into court where people say, this violates casey. How do you decide this . It would begin in a district court, a trial court. The trial court would make a record, parties would litigate that record, and then it would go to a court of appeals that would review that record looking for error, and again, it would be the same process. Someone would have to seek the Supreme Court and then it would be the full judicial process. It would be brief, oral argument, consultation with colleagues, writing, really digging down into it. It is not just a vote. You all have a policy and you cast a vote. The judicial process different is different. When it comes to your personal views about this topic, do you own a gun . We do. Ok. Do you think you could fairly decide a case even though you own a gun . Yes. You are a catholic. I am. We have established that. The tenants of your faith mean a lot to you personally, correct . That is true. You have chosen to raise your family in the catholic faith . Yes. Can you set aside beliefs regarding any issue before you . I can and i have done that in my time on the seventh circuit. If i stay on the seventh circuit, i will continue to do that, and if i am confirmed to the subject court, i will continue to do so as well i daresay your personal views on the Supreme Court and nobody , questions whether our liberal friends can set aside their beliefs. There is no reason to question yours in my view. The bottom line here is there is a process. You fill in the blanks whether this is about guns and heller, abortion rights, let us go to Citizens United. My good friend senator whitehouse, you and i are going to come closer and closer about regulating money because i do not know what is going on out there. [laughter] there is a lot of money being raised in this campaign. I would like to know where the hell some of it is coming from, but that is not your problem. Citizens united says what . Citizens united extends the protection of the First Amendment to corporations engaged in political speech. If congress wanted to revisit that and somebody challenged it under Citizens United that Congress Went too far, what would you do . How would the process work . Same process i have been describing. Somebody would have to challenge that law. Somebody who wanted to spend the money in a political campaign. It would wind its way up and judges would decide it after briefs and oral arguments in consultation with colleagues. Ok. Samesex marriage, what is the case that established samesex marriage . [indiscernible] if there was a state that tried to outlaw samesex marriage, would it follow the same process . It would and one thing i neglected to say before is not only would someone have to challenge that statute if they outlaw samesex marriage, there would have to be a case challenging it. For the Supreme Court to take it up, you would have to have lower courts going along and saying we are going to flout this. The most likely result would be lower courts, who are bound, would shut such a lawsuit, and it would not make its way up to the Supreme Court. If it did, it would be the same process i have described. Let us turn to senator hawleys favorite topic, substantive due process. As a legal theory, what am i talking about . Can you explain it to the country because if you cannot, i think i am in trouble . The 14th and 15th ammendment provide that the state cannot take life, liberty or process without due process of law. That like a procedural guarantee, but in Supreme Court president , it has a substantive component. There are some liberties, some right that people possess that the state cannot take away or without a good reason. The right to use birth control, the right to an abortion are examples of rights protected by substantive due process. These are created rights not found in the document called the constitution, is that correct . The Supreme Court has grounded them in the constitution.