Questioning. There is a lot of exchange between her and senator Amy Klobuchar about the Affordable Care act. She did write this article that was a book review of someone elses book about the aca and she made comments about how it was decided. The law review article was published in january of 2017. And senator klobuchar seemed to be suggest Newt Gingrich some way that judge barrett was telegraphing a message. Judge barrett said if youre trying to say that i wrote that as an open letter to the president , i did not. That would have been the month he was inaugurated. She talked about the process takes months to put together. It was likely finished well in advance of the 2016 election. But theyre going to try to tie her. We have that exchange. Klobuchar went at her several times on this. Take a listen to what you just described. Did you you have then a general understanding that one of the president s Campaign Promises was to repeal the Affordable Care act when you were nominated . As i said before im aware that the president opposes the Affordable Care act. Well i know youre aware now. Were you aware back then . Well it seems. When you were nominated . Well senator klobuchar, i think that the republicans from kind of made that clear, its part of the public discourse. Just then is the answer yes, then . Well senator klobuchar all these questions youre suggesting that i have an animus or i cut a deal with the president. I was very clear yesterday that was not the situation do you think theyll come back on this again . I do. Its a constant theme here and they may not be able to pin down judge barrett on how she would rule on the aca or shes indicated in the past that she would, or that she signaled how shes going to vote on the case theyre hearing november 10th if shes confirmed to the bench. The aca polls at the top of voter concerns. They may be talking in these hearings that millions of people are watching, than they are to judge barrett. She says ive answered these questions numerous times, i have told you what i did and didnt write in the past but i dont think thats going to stop them from asking her about it. How much did you relate to Amy Coney Barrett there when she said that last night she needed a glass of wine after all of that questioning . You know what . I think it could make the hearings a little interesting here in the sky box. Were all working long hours today and all week, i think a glass of wine might be nap time for me. I thought it was great. Lets bring in Ari Fleischer and Juan Williams. Im going to think about sound i want to play for you. In the meantime while they work at the audio issues, lets get impressions from you on day two of this questioning, ari first i disagree with her about the wine i would like a glass of rye to get you through the evening. One constant strarn going through the hearings, the democrats see the Supreme Court as an auxiliary legislature, they see the Supreme Court as the place to get enacted into law that which they dont have the among majority to get passed through the they dont have the will to pass it. Republicans see the Supreme Court in a narrow vein of settling disputes about how to interpret the law. Its a gulf of disputes. Thats why theyre treating her as if shes nominated to be secretary of health and human services, because its all to them about passing legislation through the courts, not about her judicial philosophy and they are abilities as a judge. The issue of Voting Rights came up today, juan, this is senator durbin, he brought this up. They had a pretty spirited exchange. Lets take a listen to that when asked whether or not the president has any authority to unilaterally deny that right to vote for a person based on race or even gender are you saying you cant answer that question . Senator i just referenced the 14th and 15th amendment, the same one you repeated back to me that do prohibit discrimination on the basis of race and voting. As i said, i dont know how else i can say it, the constitution contains provisions that prohibit discrimination on the basis of race in vote sglg solid answer, juan . Yeah i think thats a legitimate answer and its clearly. I think the concern is that given the fact that she says shes in the scalia mode and given what weve seen in terms of the Supreme Courts decision to roll back the decisions of the Voting Rights act and what were going through in terms of voting suppression and voting hours and moving ballot boxes, i think theres a concern among democrats that the court is in fact, from a conservative position about making law. I mean you know what weve seen is a high number of conservatives on the court undoi undoing president dent. I think thats been the theme this morning and into the afternoon president dent. Precedent. It looks like the family is filing back into the room. They had an audio difficulty but it looks like it might be resolved. This is the second day of questioning. Each senator has 20 minutes today and if theres time i understand they will have another ten minutes to go back around on this. Ari i would point out senator coons has said that he thinks that she will he is concerned she will take the court in a very different direction. With all due respect i will be voting against your confirmation. Not about her as a person or her abilities but he thinks how she might rule in the future yeah sadly we crossed that bridge years ago didnt we . Senators used to vote for people based on their qualifications. They would get confirmed 973, 982, now if you dont belong to my party im going to vote against you. Both parties do that. I regret that very much. Were putting people in a position of life time appointment. It should not be i agree with your position, it should be do you have the right tempt temper meant, judgment, were narrow casti casting instead of broadcasting. Shannon bream any update on the hearing and tell us what we can expect for the rest of the day. We see the family has come back in. Normally they get seated before the judge so it looks like theyre making progress. A lot of folks huddled around. We have all those rounds of questioning. A lot of people weve been watching closely who were big players, senator booker who asked interesting questions as did mazie hirono yesterday asking if she had be sexually assaulting someone or tried to force sexual favors on someone . There were odd questions and the vis presidency shall nominee Kamala Harris has not been coming in person, shes a couple floors away it and she has been doing that remotely. Were going to pick up where we left off. Those names are still to come. I would like to point out senator klobuchar today was going after the judge and saying you are one of three justices who worked on bush v gore in 2000 she said i was a young associate who briefly worked on the case. Senator klobuchar was trying to string together and say do you think its a coincidence that youve been picked for this case because you worked on bush v gore 20 years ago . Judge barrett didnt take the bait. I have shannon, i dont have the sound, im going to read what she Amy Coney Barrett responded to klobuchar on the bush v gore question. If you are asking me if i was nominated on bush v gore as a young associate that doesnt make sense. I thought that was a decent answer. Juan i want to ask you about this idea that the senators come back to, yes, she clerked to scalia, he was amen or, she keeps reminding them she has her own mind. If we have time do you want to play slot 13 . We dont have that one. Basically she says ive already said i hope you arent suggesting i have my own mind or i couldnt think independently or i will just say what scalia said in the past. I think that that is something that shes been quietly frustrated with during this last two days senator coons said when they had a private conversation before these hearings she said she could not think of one instance where she disagreed with Justice Scalia and he went after her specifically about privacy rights. Her response was she understands privacy rights are essential to major decisions including roe v wade but she didnt see any reason that griswold or any other questions would be overruled. We have three republican senators participating in these hearings, graham, tillis and earnst. All of them wanting to be here instead of back on the campaign trail, thinking this is a really important thing for them to do in washington this week well absolutely. These are their duties. And you want to be on the campaign trail of course because of politics. You reach a lot of constituents when youre on t. V. And people can see you. Remember what happened with Brett Kavanaugh, every republican voted for Brett Kavanaugh and it boosted them. In the Senate Republicans knocked off four incumbents all of whom voted against kavanaugh. The worst thing a republican could do would be to oppose the judge. None of them are for that. Theyre for her on the merits. Were waiting for the technical difficulties to be worked out. Well bring this hearing back to you as soon as it gets started again. Shannon bream if youre still the there i am. I wanted to ask you about tomorrow, look forward, because one of the things ari said, he brought up Brett Kavanaugh. The kavanaugh hearings were tough. But all the controversy came after the hearings concluded. Do you anticipate anything like that on this go around . Yeah, you know dana youre so right to point that out. Maybe we forget that what turned into the yelling and protestors and yelling that wasnt initially happening. We got through the first phase, and thought they were going to proceed to the vote. There is time when it goes to the senate floor and thats where supporters have to be nervous and the accusations started to surface against now Justice Kavanaugh. No one is anticipating there is anything like that lurking against judge barrett. You have to know the Oppo Research is happening hoping to find any way to derail her. The this has been much more fast paced simple moving ahead confirmation process. I wouldnt expect anything like that but we didnt last name either. Shannon, ari, juan, were going to squeeze in a quick break. Well be right back. The people everywhere living with type 2 diabetes are waking up to whats possible with rybelsus®. You are my sunshine, my only sunshine. Rybelsus® works differently than any other diabetes pill to lower blood sugar in all 3 of these ways. 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Go to aerotrainer. Com, thats aerotrainer. Com. Welcome back to the daily briefing. Shannon bream, Ari Fleischer and Juan Williams are with us. And josh. Thank you for being with us. We anticipate that the technical difficulties that caused a halt in this hearing will be resolved soon. In the meantime well talk about a few things that have happened today. I wanted to play this sound from lindsey graham, the chairman of the judicial committee. This is one of the ways he opened up the session today. Take a listen. This is the first time in American History that weve nominated a woman who is unat shamedly prolife, and embraces her faith without apology and shes going to the court. The seat at the table is waiting on you. And it will be a great signal to all young women who share your view of the world, that there is a seat at the table for them. Shannon bream youve covered the court for so many years. How remarkable is that . It is very interesting. You think about the liberal wing of the court under Justice Ginsburgs leadership has had three solidly left leaning justices there who are females, kagan, sotomayor and ginsburg and they very much operated together in lock step on hot button issues. The recent cases on the issue of abortion, it seemed like a lot of male justices didnt want to speak up, push and badger and ask questions of the advocates and attorneys who were there arguing the cases, almost like they sort of stepped back and said were going to let the female justices tackle it. But the voice wasnt there. It would be different if judge barrett becomes Justice Barrett. Juan williams, maybe some thoughts from you. Theyve focused on obamacare, aca but the question about roe v wade has been a part of this hearing but i can its lying underneath its a huge issue in american life. Its one of the issues that is very polar eyeing, and extremely emotional for so many families. Its a deeply important question. We know what the polls so in terms of overwhelming support for a woman having that right in American Society t all kinds of conditions have influenced how voters or the American People respond to that right. We know their arguments among the most learned of jury is ifrts with regard to whether or not roe v wade was properly decided or should have been left to the state legislators to decide. When you and Justice Barrett about this she pretends as if i signed a letter on the way out from church or yes ive said things in speeches and spoken to groups, et cetera. But she never, ever, just says what she thinks. I think from the democrats perspective this is one of the key reasons why conservatives like her so much. They assume that she will be a vote against a womans right to choose in roe v wade. She does say at one point that she was any case that comes before her she would look at that with an open mind and she has her own mind on that. Ari fleischer i want you to listen to senator leahy. This was a question he posed to her in records to the presidency, we all know who he was talking about. Take a listen nobody is above the law. Not the president , not you, not me. Is that correct . I agree, no one is above the law. And does a president have an absolute right to pardon himself for a crime . Senator leahy so far as i know, that question has never been litigated. That question has never arisen. That question may or may not arise. But its one that calls for a legal analysis of what the schoop of the pardon power is. I got an update on timing if you need it. Ill take that, what do you have . Im told that they do know what the technical problem is here and they are probably about ten to fifteen minutes out, they think from having it fixed and resolved. They know what it is, the fix is in process. Ten to fifteen minutes be we should be back on track. We still have Ari Fleischer who can respond to the sound from senator leahy and what he was trying to get at, he wanted her to talk to the issue of being a president pardon himself and we know the democrats have been asking this about President Trump for awhile. First im glad the sound problem is not the surprise that shannon was talking about earlier that would last for a week or ten days. Im glad its going to get fixed. As far as senator leahys question about pardon powers, i thought it was a good question and she gave a very good answer. Thats why you have to love the Supreme Court. They wrestle with very big Found Department tal issues in terms of how do you interpret the continues stewings which was written over 200 years ago but lives and breathes today. That will untested. We dont know. The right answer is for nine justices to get together, talk it over and come up with a ruling. None of this have been through this before. It may come up, but i dont look at that as a gotcha question, usually i do for most of his questions. Yesterday he pep erred her with do you know this stat, this fact, that was a constitutional question he posed to her and i thought it was a good one. I think people want to know the answers to things like that. Josh great to have you here. Youre with National Journal you look at these things on a macro level as well. I want to ask you listen to senator cornyn from texas about the position of a federal judge and a lifetime appointment. As a judge you serve for lifetime tenure, correct. Correct. You dont have to stand for election. No. You dont have to raise money. No. You dont have to consult pol polls. No. Focus groups . No, well the reason we have life tenure as federal judges is to be insulated from the pressure that such things like focus groups or public opinions, the pressure that might apply for a court to decide a case one way or another. Thats why we side according to text. I know there are so many focus groups going on right now, these drawing a line between the Judicial Branch and those that are elected officers. And senator cornyn certainly knows about the politics. Hes in the middle of a very competitive reelection in texas. Republicans are looking at the polling quite encouraging when it comes to this nomination. She started off with a lot of voters not knowing about her, skeptical about how this was handled. Morning consult came our with a poll saying shes gaining ground. 48 say they like her confirmation. A lot of senators up for reelection. Theyre using these hearings as a political stage of their own. I think they have to be liking what theyve been hearing from the judge. Shes answered all the questions very effectively and showing a judicial temperament. Its for her confirmation but in many cases the senators up for reelection are looking at it as a way to get their pet themes across in their cam explain while weve had this break, senator thom tillis of North Carolina also in a competitive race, he went over and talked to the family of Amy Coney Barrett. They are back in the hearing room. These not back yet but probably about eight minutes away from the audio difficulties being fixed. Well bring that hearing to you as soon as we can. In the meantime john roberts is live on the north lawn, you can give us an update from the other end of pennsylvania avenue. Testing 12, want to make sure this works, can you hear me alright . The white house its my understanding couldnt be happier with the way things are going with this proceedings. Theres a sense here the democrats really havent laid a glove on her compare raatively speaking to the kavanaugh hearings. Its card i cant. The democrats are raising concerns that they want to get out to the public for voters to die vejest. Shes been holding her own, shes been suggesting she cant answer questions when she believes it could lead her down a rabbit hole that could potentially get her in trouble. We saw a long exchange between her and senator durbin, concerns raised by senator Amy Klobuchar. And she seems to be pretty disarming. And i think a sense here that democrats are pretty much resigned to the fact that this is going to go ahead. Shes going to be confirmed. At worst it will believe 51 did 49 and she will become the next associate of the Supreme Court. The white house very happy, especially when you look at the accelerated timeline this has been on. This could be quite contentious given the politics involved and it hasnt been. President trump is looking at this thinking its been going as well as expected. President trump if he cements aim 63 majority on the Supreme Court to years to come that will result in a tremendous support from his base. Hes hoping they will get out to the polls to reward him for doing this. This is the idea of the Affordable Care act, as much as Amy Coney Barrett has tried to avoid answering that question. The president would be looking for her vote if he can get her confirmed by november 10th, he wants to get rid of it and put Something Else in its place though he has not fully articulated what would be in its place or how he would legitimately and genuinely provide protections for people who had preexisting conditions. He has the executive order but what force of law does that carry . Its unclear. The president wants all nine justices up and operating should there be a challenge to the election. We havent heard anything from the president today, at the rally in johnstown pennsylvania last night the president saying hes extremely proud of his nomination for the Supreme Court. He thinks she will be terrific. Communications director earlier on fox saying theyre happy with the way things are going and happy with the income knee. President hassle an event in did he point iowa tonight and im told it is likely he will stop and talk to the press pool on the way out. We may get a chance to hear his thoughts on everything hes seen transpire over the last couple days from the white house. Thats just 90 minutes from now. Thank you very much. The hearing should get under way in just about 7 minutes. Peter ducey in the meantime covering the Biden Campaign. Where do we find you, peter . In wilmington delaware where joe biden is and the campaign alerted us several hours ago before 10 00 a. M. That we will not see the democratic nominee in person today. Hes not going to have any events away from the house. We dont know if hes watching the Supreme Court confirmation hearings where his running mate pops up every couple hours with questions for Amy Coney Barrett. But we know hes here preparing for a town hall hes going to have tomorrow night. He and trump both doing televised town hauls separately because they will not be in south florida, in miami for a debate sins President Trump didnt want to do virtual and the Biden Campaign didnt want to do anything other than what they had agreed to with the commission on presidency shall debates. As biden is off the trail, action yeses counted sins august 319th joe biden has taken 365 questions from the press, that is less than the 753 questions that President Trump has taken. Now that we are within three weeks of polls closing, joe biden says hes bringing barack obama out with him on the trail. The campaign doesnt provide advance notice because it keeps changing and they dont invite members of the public to their Campaign Events so theres not an urgency to alert people where theyre going to be and when. The Biden Campaign continues to do as much as they can to protect the candidate, the staff and also the people who come usually to sit in their car and listen to joe biden from covid19 going so far yesterday as to having the candidate wearing two masks at the same time. N95 and surgical as he got off the plane in florida. Dana. Alright. Peter ducey always good to see you in florida. Were waiting for this hearing to get back under way. Weve been told the technical difficulties on the audio or being fixed. I want to bring back the panel. Josh could i go back to you . John roberts mentions the president is hoping and Trump Campaign is hoping his base, voters will want to come out, vote for him and as john put it reward him for getting this Supreme Court nomination through the process yeah, i mean the president is relying on his base. That has been the strategy all along. The examing length the president faces is a lot of i believed swing voters are drifting away from him. But this is why republicans are having the Supreme Court hearings when they are. They think this is a winning issue politically. The reason democrats are talking so much about healthcare and the Affordable Care act is because they think thats more favorable territory. Theyve turned a lot of the supreme your questioning of Amy Coney Barrett into a stage for their arguments on healthcare. That means the democrats like the political environment the way it is now, the republicans think the Supreme Court hearings help them a little bit. If this campaign is hinging on health care, pandemic, economy, that is trending toward the democrats. Lets bring in the story anchor o. Martha maccallum. Were waiting for things to get under way. Right before john roberts gave us his update, a lot of polling is showing even democrats are starting to like her, approve her. When they said last night they got rest and the needed a glass of wine after all of it, i thought shes just like us. Shes just like you and me. J yeah, thanks for that, i was just listening to josh and john is, very interesting analysis and shannon of course of whats going on here today. I think she is reaching a lot of people, relating to a lot of people across the country. Nobody really knew her outside of the circle she taught in and worked in outside the 7th circuit. I think the country is getting to know her and i think they see her as a very wise, very evenhandeded human being. Not someone who will employee judge any case before it comes before her. I think its an interesting moment as we talked about earlier. You have this woman who is very open about her catholic beliefs and she is demonstrating to the country that you can be a religious person and you can treat your career in her case its the law, as a separate entity from that. And you can base your decisions on the constitution and on the evaluation of the law as it comes before you. I think its been a fascinating education for the whole country. I do think people like her, they like what they see. I wanted to ask you about the dynamics of the court. If she does become a justice how will she be received on the court . I think its interesting she has young children. None of the other justices have young children, they have all raised children, but how might she be welcomed . I know they have a lot of collegiality among themselves they do. They have lunch together constant constantly. They talk about books theyre reading, kids, Justice Kavanaugh has young daughters, Justice Gorsuchs are younger. This is the first time weve a female justice with School Aged Children sitting on the court. Justice kavanaugh has talked about how he had apprehension after what he went through about how he would be received. He specifically talked about Justice Ginsburg and how she was one of the first people to reach out and the say listen youre one of us, we have work to do here and she was very, very kind. I think the 9 of them are in the secret society well never be in. And only they and their families can really understand who thats lining. They have strong bonds as weve seen. I think she will be welcomed. She will have a lot of work to do if she steps into the next term within a week or two. Conservatives have looked at the court, thought about the court, campaigned on the court and democrats have not done that as much. Do you think thats changing . I think its become a major issue at the moment and because the process, just to pick up on what shannon was saying, let me go off topic for a second. I wrote a biography of justice march shall and in the course of the research sat down with Justice Scalia and it was interesting, scalia, brennan, who was on the left, so many people across the political spectrum once they get on to the courts do view themselves as part of something apart, as the family shannon was saying. I think in that sense you will see somewhat of an embrace. I dont know that they will somehow mute or sovereign their positions on issues. But its not the case that theres an nose sir or the kind of political polar saying in the congress at the Supreme Court. For democrats now, given the process, not Amy Coney Barrett but the process that clearly denies even meetings much less a hearing to merrick garland, democrats are edge ranged. Here she is returning to the hearing room. Amy coney barrett, to face another few hours of questions. Sorry about the interruption there. Senator tillis. Or your time is up. [laughter] thank you. Senator blumenthal. Thank you mr. Chairman. [ laughter ]. That was almost the shortest questioning session you had. I was getting ready to defend you and say, oh, no, its senators blumenthals turn. Hard to keep track of us. I entered letters into the record, mr. Chairman, i believe before we broke yes, sir, without objection. And i began my questioning about the Third Circuit opinion and i believe that you would agree that decision applied to misdemeanor offenses, not to felons. Yes, i was thinking of the separate opinion, and the splintered decision. It really doesnt support the defense that you wrote in judge hartmans position does in the five. But i miss remembered the Common Holding for the lure at. I wanted to ask you or clarify the quote that i read to you was from a speech you gave to the hills dale college may 21, 2018, quote about your opinion, dissenting opinion in kanter, quote, it sounds kind of radical to say felons can have firearms, end quote. I want to clarify that was the source of the quote thank you. I too had looked at that. I was pretty sure i hadnt written the opinion. It was in the source of explaining the opinion to that audience, i was saying it sounds kind of radical and going on to explain why it wasnt and the reasoning. Yes, thank you for correcting that senator. Thank you. I also want to go back to another aspect of our conversation because senator graham asked about it this morning. I showed you a letter that you signed from 2013. By the notre dame faculty for life. And specifically a sentence, the unborn to be protected, we renew our call for the unborn to be protected in law and welcomed in life. I asked you about the ivf procedure whether it could can banned criminally under the constitution. And you said to me that you couldnt answer that question in the abstract. You said we cant answer questions in the abdomen tract. I asked you about your legal opinion and position. Not your personal beliefs or religious views. You understand that point . Yes. Yes. And i am disappointed that evidently you cant tell us or the American People whether you believe or your legal position is that ivf can be constitutionally banned because so Many Americans depend on this medical procedure for the ability to have children. I also want to ask you, should courts specifically the Supreme Court be deciding the express did he know shall decision . So the president ial election as the fall election, is a matter put to the voters to cast ballots. But the presumption should be against the court deciding the election. Its the people and the voters who should decide s. Correct . Senator blumenthal i think that occasions on which courts adjudication election disputes are designed to protect the voters choice and the right to vote. Of course the Supreme Court doesnt kachtd ballots, voters cast ballots and election laws designed to the courts should do everything to avoid em broiling themselves in elected politics. Rusho shes jerry manned derring is presumption should be against courts getting involved. Let me ask you about some precedence. Im asking not about super precedence okay. As you defined super precedence, they are cases so well settled that no political actions, no people seriously push for their over turning. Im not asking you about what other people may think about these cases or may do about them and im not asking you hypotheticals. These are real cases. Brown versus board of education, do you think it was correctly decided . I know you told senator graham you thought so. I would like you just to clarify that point sure so as i said to senator graham when he asked me that question, i have spoken on that before. And the originalism lecture as you sit here, correctly decided, correct . Correctly decided. Yes, ive said that. Thank you. Let me ask you about loving versus the loving case. Do you think that was correctly it decided . Well loving follows directly from brown. Brown is correctly decided, loving as well. It was correctly decided. It was correctly decided. Thank you. Now lets talk about griswold. Correctly decided . Well, senator blumenthal the reason i know you gave an answer, excuse me for interrupting i know you gave an answer to senator coons but this issue is more than academic, that was the word you used. You said its very, very, very, very, very, unlikely to be challenged, and maybe. But all the more reason that you should be willing to tell the American People, it was correctly decided. Im asking about your legal position. Would you have been in the majority . Well sent sents i have a couple things on that. One is the reason why i expressed a view on brown to senator graham is that i do think what i have said in print either in my scholarly work or judicial positions is fair game. I have said in the past in the originalism lecture i gave that brown was correctly decided. I thought that was fair game. Loving is indistinguishable from brown, it flows directly from that. Loving and involved i want racial marriage and griswold involved a ban on contraception, criminal ban on the use of contraception which in turn also involved isenstatv bared. Im asking your legal position. I want you to keep in mind how many people are listening and watching, because they may take a message from what you say. They may see what you say, and be deterred from using continue accept i was are may feel a fear that it could be banned well senator blumenthal, the position that ive take ten is whether a question is easy or hard, that i cant offer an answer to it, and i would be surprised if people were afraid that Birth Control was about to be criminalized. Because i said to senator coons, i dont see anything you may be surprised but chief Justice Roberts said, quote i agree with the griswo griswolds conclusion that marital privacy extends to contraception. It better fits within the privacy that i believe the constitution protects i couldnt think of a hypothetical better than griswold. At his hearing Justice Thomas said i believe the approach that justice har land took, reaffirmed in griswold in determining the right to privacy was the appropriate way to go. And he reaffirmed, ice en stat. V bared. Im stunned that youre not willing to say, an unequivocal yes it was correctly decided, i would have been in the imagine majority. Lawrence v texas which held that the government cannot criminal employees gay and less buy an relationships. Was it correctly decided . Senator blumenthal, i again have said throughout the hearing that i cant grade precedent on the words of Justice Kagan give it a thumbs up or a thumbs down. Forgive me for interrupting but my time is limited. The senator blumenthal i cant give a yes or a no. My declining to give an answer doesnt suggest disagreement or agreement. The certainly shouldnt suggest. Im asking your legal position, judge. Not your moral position not a policy position, not a religious faith position. A legal position. Correctly decided snd observe oberfeld versus hodges every time you ask me a question about whether the case was correctly decided or not incompetent not answer the question because i cannot express agreement or disagreement with the precedent. All those are by me and were i to be confirmed i would be responsible for an applying stare decisis to all of them. Think of how you would feel as a gay or less buy an american to hear that yhear that you can whether the government can make it a crime for them to have that relationship, whether the government can enable people who are happily married to continue that relationship. Think of how you would feel senator implying that im poised to cast a vote to overrule obergefeld, youre pushing me to violate the judicial cannons and i wont do that. Judge you yourself wrote, in 2016, an article that you co. Wrote with john nagel called congressional originalism. Quote, a confirmation hearing answering hypothetical questions about the soundness of particular precedence is par for the course. End quote. It is par for the course because americans want to know your medical position on these issues. And they have a right to know. They deserve and need to know. And i am surprised and i think a lot of americans will be scared by the idea that people who want to simply mary or have relationship with the person they love, could find it criminalized, could find Marriage Equality cut back. I think it would be in an america where i wouldnt want to live well senator to suggest that thats the kind of america i want to create isnt based in any facts in my record. That quote that you read it me from the article talked about being par for the course to those questions to be asked but didnt say anything about whether it was appropriate for nominees to answer them. Others have answered that same question. And im disappointed that you wont. Let me move on to another area. Last month the New York Times published a series of bombshell reports dealing with the current state of the peaceful protests finances. There were a lot of revelations in that report including that the president himself is responsible for loans total go 421 million. Most of which is coming due within four years. That amount of personal debt makes the president vulnerable to leverage, coercion. His vulnerability makes him a threat to our national security. Im not going to ask you about that aspect of his finances. Or that he paid only 750 in income taxes in 2016 and 2017. I want to ask you about a fact that is critical constitutionally p during his first two years in office the president received 73 million from foreign sources. Now, in the interest of full disclosure, i just want to say i led a lawsuit involving 200 of my colleagues challenging the president s receipt of those foreign benefits and foreign payments as a violation of the emoluments clause. And we cited as well other payments and benefits that he received from india, afghanistan, kuwait, malaysia, saudi arabia, thailand and more, in violation of the emoluments clause. Weve been talking about origin originalism. The emoluments clause was the premier anticorruption clause in the United States constitution. As Edmond Randolph of virginia said, specifically, the clause was intended to, quote, prevent corruption. End quote. By, quote, prohibiting anyone in office from receiving or holding any emoluments from foreign states, end quote. The lawsuit that i head was denied certiori yesterday by the United States Supreme Court. The Dc Circuit Court of appeals ruled against us on the limited technical issue of standing. It didnt deal with the merits. I hope that you will keep in mind, the danger of corruption and the need to give citizens sta standing to enforce laws that prohibit corruption. Nobody is above the law. Youve stated that position very well. And enforcement of laws that prevent corruption is vital. And, my view is that the president , any president must be held accountable. Do you agree . No man is above the law. I agree with that, as ive stated very clearly before. I also want to assure you senator blumenthal that i will apply all laws and come to an open mind with all laws including laws dealing with anticorruption. Let me ask you about a topic that hasnt arisen much here. Climate change. One of my colleagues, cents sent kennedy asked you about it late in the hearing yesterday. And your answer was, quote, you know im not a scientist, i have read things about Climate Change, i would not say i have firm views on it. Do you believe that human beings cause Global Warming . Well senator blumenthal i dont think i am competent to opine on what causes Global Warming or not. So. We all have feelings on it. Im asking for your opinion i dont think that my views on Global Warming or Climate Change are relevant to the job i would do as a judge. Nor do i feel that i have views that are informed enough and i havent studied scientific data. Im not in a position to offer any kind of informed opinion on what i think causes global i understand and again i apologize for i want ru79ing. Interrupting. Do you agree with the president on his views on Climate Change . I dont know that i have seen the president s expression of his views on Climate Change. Okay. Let me ask you on another area. Are you aware of the vehement court as its Supreme Court as its called shadow docket . I am. Essentially this docket consists of cases that are decided, often stays or extension of orders, without an opinion opinion, correct . Correct. And as a matter of fact in the denial of search shore ri in blumenthal versus trump, yesterday, there was no opinion providing the reasons why they did so. We dont even know how many justices supported the decision, except that there must have been at least five and despite dee tamed reasoning from lower courts, which we challenged, about the issues, there was tamed reasoning from lower courts, which we challenged, about the issues, there was no opinion and the same it was true of the census decision, as you know. Dont you think there should be transparency on the part of the Supreme Court . I think that the court in the practice of denying serta petitions routinely, and the shadow docket has become a hot topic in the last couple years. Even when i was clerking on the court in 1998 it was not typical for the court to explain opinions of why serta was denied. As far as i know its never been the routine practice of the court my time is limited but i just want to leave you with the very strong message, because increasingly, the court has turned to this shadow docket. In fact, its growing larger, its up to 6 thousand cases every year, where it rules, without an opinion, and without disclosing who voted which way. That strikes me as an antidemocratic, with a small d. It decides only about 80 cases on its merits docket every year, which is smaller than when i was a law clerk on the court. And probably when you were a law clerk as well. So fewer cases accountable, and less tran paren i. Transparency. Im going to conclude here. I just want to say we tried to bring into this room, real people who are going to be affected by your decisions. Some of them will lose their coverage, in fact millions of merg merges, including conor quran will lose his coverage under the Affordable Care act if hes denied the protection to people with preexisting conditions. Legislative activism from the bench, and the kind of activism that i fear you will bring to the bench is one of the [ no audio ] [ no audio ] i think it happened again. It looks like we have audio difficulties again there in the hearing room. Senator blumenthal had just been questioning Amy Coney Barrett for the last 25 minutes or so. Short 20 minutes. Weve lost the audio again. I believe i have a panel here. I know i have juan here because hes sitting here next to me and ari. Shannon bream did we find out exactly what this problem is and can they get it fixed . Im sure she wants to get this over every with. Shannon . Dont have shannon. Alright Juan Williams here we are, we have 90 seconds left here in this show until we hand it over to bill hemmer, unless it gets going again. Any comments on senator blumenthal. He was laminating they will wouldnt bring in real people that would be affected by decisions she would make i think theyve been trying to. Thats why weve seen visual presentations, white boards and the types, names, stories tomorrow. Ed the emphasis by the democrats is on this case that will be becoming before the courts in early november and President Trump is clear about his opposition to the Affordable Care act and the assumption she might be against it. For political purposes thats why the democrats might be talking about this. Ari fleischer final thoughts before we turn it over . Im reminded why we have a bill of rights. A bill of rights is to protect minority and majority tyranny. There will be cases where judges have to put aside politics and public opinion, sent sents dont, justices do. Of its heart anyoning to hear her say i wont take a stand, i will hear them and weigh in. Thats where protection of minority rights can come into being. And those rights can be the unpopular decision. If its the right thing to do, it is the right thing to do. Thank you for being here h bill hemmer if youre here. I might see you on the five. Dana its 2020, nothing works. Good afternoon to you. Im bill hemmer. Technical difficulties plaguing the last hour of the hearings. Judge barretts high stakes confirmation hearing will continue nonetheless. Were three weeks away from an election. 14 million votes cast, were watching that in various states, too. The topic of voting my mail came up in exchange by senator Amy Klobuchar. Judge barrett said she would not talk about a matter of policy. Democrats have asked barrett about healthcare, contraception, president ial pardon power. She has defended herself as having her own
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