Acknowledging that the constitution doesnt require it but our respect for the separation of powers really ought to lead to us sticking to the number nine. Dont pack the court. In recent days ive seen some in the media, some in this body, try to redefine what it means to pack the court. Some have suggested, well, Court Packing takes various forms and it can mean confirming a lot of people all at once. Some have defined it so as to suggest that it consists of doing that which the Trump Administration and the Republican Senate have been doing over the last 3 1 2 years which is filling vacancies as they have arisen and doing so with textualist, originalist judges. This may not be something that some like but this is not Court Packing. Court packing is itself manipulative. Its something that has great danger to do immense political and constitutional harm to our system of government in part because it would set up a oneway rachet. Once you create a position and confirm someone to that position, absent death, retirement, impeachment, or removal, that position remains in place. So if for example a future congress and white house were to decide to get together and to pack the court and increase the number, say, to 11, and lets say its democrats who do that, and weve got joe biden now as a president ial candidate who is refusing to say whether he would do it, theres a reason hes not saying whether he would do it. Theres only one reason why you refuse to answer that question, its if youre wanting to be able to do it but you dont want to take the heat for thinking about doing it right now. So if they do that, where does it lead . It inevitably leads to republicans, if they have control of the congress and the white house, increasing it as well. Pretty soon it looks like the senate in star wars where you have hundreds of people on there. I dont know what the total number would be. You increase it at all, you change the number at all, you do so for partisan political purposes at all, you delegitimize the court. And you cant delegitimize the Court Without fundamentally threatening and eroding and impairing some of our most valued liberties. You cant do that without inevitably threatening things like religious freedom, things like free speech, things that are themselves often unpopular but are protected by the constitution precisely because they are unpopular. And yes, in that respect, the constitution is sometimes counterdemocratic. Sometimes it can be described as fundamentally undemocratic. In fact its the whole reason to have a constitution, is to protect us from the impulse of a majority that might be bent on harming the few in the name of the many. Thats why the law is so important. Thats why the position for which youre being considered is so essential. Thats why weve got to do our job to make sure that the only people who get the job for when youve been nominated fit the bill. You, judge barrett, are someone in whom i have immense confidence. Immense trust. And i look forward to voting to confirming you for that very position. Thanks, senator lee. We will take lets come back at 12 45. Well start with senator whitehouse. We have 15 senators left. Everybody takes the 30 minutes, thats 7 1 2 hours. Well take a break for dinner tonight sometime later on, a short break. Are you doing okay, after three hours of that . Well come back at 12 45 and right now were scheduled to be here until 9 00 but well do whatever the committee wants. Were in recess until 12 45. Youve been watching president Trumps Supreme Court nominee judge Amy Coney Barretts questioning, day one of questioning. Im chuck todd of nbc news in washington, at our first break in the hearing. Nbc Senior Correspondent andrea mitchell, former democratic senator Claire Mccaskill, former u. S. Attorney chuck rosenberg, and nyu law professor melissa murray, also a law clerk to Justice Sotomayor and nbc justice correspondent pete williams. Before i get to, because i feel like we have two hearings here, weve had occasional questions to judge barrett and a debate between senators on obamacare, and i want to get to the debate on obamacare in a minute, but pete, im getting flooded by Amy Coney Barrett supporters with the ginsburg rule, the ginsburg rule, the precedent, what she said in 1993, what she did say and what she didnt say, and the how would you say that judge barrett is trying to use this ginsburg precedent, if you will, from 1993 . I would say shes been trying to use it like everybody else who has read the transcript of Justice Ginsburgs answers in her confirmation hearing. Its become the bible for all nominees to any judicial position since then. And shes followed it very carefully, i would say. What is it that im curious on this, pete. Why is it there are people that say, look, what she said, what ginsburg said, but ginsburg also gave us a very detailed answer on her views on abortion and here that standard has been used to avoid giving detailed answers on abortion or roe. Justice ginsburg when she came to the court had a long history of advocating on behalf of womens rights. And she was saying its only a natural extension to talk about abortion in that context. Whereas Amy Coney Barrett, of course, at the same time, to be fair, has expressed some views on the question of abortion. She has not advocated a position, unlike Justice Ginsburg, shes never litigated in favor of it. Its academic writing, its speeches, its newspaper ads that shes signed onto, which i guess is the closest shes gotten to advocacy. But i think, you know, Justice Ginsburg both broke the rule and made the rule, because i think from that on out, everybody has followed that. Justice kagan said no thumbs up, no thumbs down, which was her version of no hints or forecasts. So shes been very careful here. I think in one case even exceedingly careful. She was asked whether the president has any authority to delay the election. And you would think that that was pretty clear. But she said, you know, if that came before me i would have to study it. That was an amazing response that im sure lit up social media. Andrea mitchell, this is a reminder that we are one of the frustrating things about watching all Supreme Court nomination hearings is, there are questions that i think as a citizen, americans want to have answered, and as a political conversation, both parties have agreed, no, nominees dont have to answer these questions. It can be quite frustrating for just the average person watching this. And for the senators, especially those who are trying to challenge her confirmation. I think thats why, going in, they knew they did not have the votes. They are trying to come up with ways, perhaps, when it gets to the floor, because its likely to get out of committee on a partisan vote unless something happens in the next couple of days, they are likely to try to do something that would change the climate, as Amy Klobuchar said yesterday, trying to get people to reach out to their republican senators, especially those in closelyfought races right now, and try to change the dynamic because they only need two more on the floor when it gets to the floor if it does get to the floor in the next week and a half or two weeks. Look, its totally understandable that she is adhering, as pete says, to the letter of what Ruth Bader Ginsburg said when she was confirmed, when she was up for confirmation in 1993. That said, people are looking for some explanation of some things shes written, that abortion is brutality, that shes been very outspoken about, and some way that she could try to say that she is not wedded to those. She said today her personal views are not the views she would take and her religious views are not the views that she would take to the court, that she would rigorously decide every case on its merits. That said, you can understand why the democrats as well as a lot of partisans in the audience, the viewers, are frustrated. As pete and you were just mentioning, her saying she would have to study a case about whether the president could delay or postpone the election is kind of being too fastidious about it, because its clearly not in the constitution. Its important that she said shes never had a conversation with any of the president s staff and anybody on the senate, referring to josh hawley from missouri, where he has said he would not vote to confirm even a Trump Nominee unless it was clearly stated that nominee was against abortion, but hes just inferring from all her writing that she would be in favor of some of these state issues that will come before the court which do limit roe and even limit kasie rcas casey, the important case in the 90s that came down from pennsylvania. Failing to even just say, heres what it says in the constitution. Exactly. Especially as an originalist. Thats exactly right. But as i introd our break panel here, i said, weve had some questioning of the nominee and weve had the debate about obamacare. It all began with Lindsey GrahamsOpening Statement with dick durbin responding two hours later. Here is a quick mashup of it. Under the Affordable Care act, three states get 35 of the money, folks. Can you name them . Ill help you. California, new york, and massachusetts. Theyre 22 of the population. When the chairman opened up on it and said what he did, i was puzzled. Three states get 35 of the money . How can that possibly be true . It turns out because those states decided to extend medicaid coverage to the people who lived in the states and his did not. And as a consequence, fewer people than South Carolina have the protection of health insurance. So Claire Mccaskill, you and i began yesterday by being surprised at the discipline of the democrats on health care. I would say the discipline drew blood, because Lindsey GrahamsOpening Statement today where he felt the need to rebut what he thought was said yesterday, and then, by the way, gave a description of what he would like to see in South Carolina which i believe someone might say, hey, you just described obama. But Claire Mccaskill, was that quite the tell from Lindsey Graham this morning . It was a tell. And he was defensive. And by the way, lets point out to everyone, South Carolina is a big winner with federal money. For every dollar sogt csouth carolinians pay to the federal government, they get back seven. They get more money from the federal Government Back than they pay in. Not only was he wrong about the way he used context for his argument, it shows how defensive they are. But, you know, what i think is kind of really weird about today is the fake outrage from the republican senators. Trump campaigned on overturning appointing nominees to the Supreme Court that would overturn abortion rights and the aca. So and by the way, some of those republican senators did too. And theyre all acting so outraged that the nominee is getting asked about it. Of course shes going to be asked about it because thats what the guy who nominated her said he was going to do. Seems Pretty Simple to me. What have you thought of her answers, Claire Mccaskill . Well, shes done a good job of playing hide the ball. I think the biggest mistake shes made all day is pretending, here she is, first in her class at law school. Ill tell you, i wasnt first in my clays, i want to the university of missouri, but i sure as hell can tell you that the president cant delay the election. Its dumb for her to go that far, it makes it look like her job today is to be evasive. Melissa murray first of all, Claire Mccaskill, ill just said, you said missouruh and the university of missouri has a very good law school, to make you happy. Fair enough. Reacting to what Claire Mccaskill said about, has she been a bit too evasive. Thats managed to dodge and weave about important issues the public does want to know about. She notes she will not overrule casey. She didnt say whether she would overrule roe v. Wade. Its roe that actually establishes a right to abortion, thats the critical question and precedent thats most in jeopardy here. She also noted she was not necessarily against obergefell v. Hodges although they did conflate obergefell with stricting down the provisions of the defense of marriage act. She never said anything about how she would apply obergefell Going Forward. There are questions pending around the country whether the protections for samesex marriage also extend to marriageadjacent issues like birth registry for parents or other forms of familyintimate rights surrogacy. She made the point she was not talking about ibf when she answered that question, but thats all on the table. I sort of heard somebody who is not overturning precedents but maybe chipping away at them. And thats how i felt as if she was answering some of those questions. To be clear, chipping away at precedent and overturning it is fundamentally a similar kind of thing. You can overrule roe entirely or hobble roe or desiccate it to a point where its a right only in name. And i think thats the question here. Is it a Long Term Strategy or something that is more immediate . If you think that she was sort of dancing around the edges and suggesting more of a chipping away, that might take you a little bit further. But the ultimate goal i think is the utter hobbling of whatever this precedent continues to mean. Chuck rosenberg, one of the few places where i think we got into the weeds a bit on some of her legal thinking had to do with some of her views on guns and particularly that one case where she seemed to question whether the Constitutional Rights of nonviolent felons should be upheld when it comes to owning a gun. Im curious what you thought of those exchanges. Its an interesting case, chuck. The case is cantor v. Barr, a seventh circuit opinion in which she was in the dissent by two to one. The court ruled mr. Cantor, convicted of a nonviolent felony, could not obtain a gun post conviction. What the majority is doing is using a felony status as a proxy for dangerousness. And what judge barrett is saying in her dissent is that as a proxy for dangerousness, a felony conviction is too broad, she would rather have an individualized determination, in other words because mr. Cantor was a nonviolent felon and doesnt have a violent felony past or a violent past at all, we ought to be able to make a determination that he can have a gun, that his Second Amendment rights ought not be abridged. I read her dissent very carefully. I thought it was principled, i thought it was thoughtful. I just happen to disagree with it, i think its unworkable, and that the majority is right in this case, because we have to find some way to do this more quickly, with some dispatch. I think others might argue and it sounded like some of the republican senators were arguing that if youre going to abridge a constitutional right, you have to make very deliberate, very careful, very particularized determinations. In this case i think its unworkable. I think the majority had it right. I think she had it wrong. I still think it was a thoughtful dissent and what impressed me how clear her writing is and how clearly she tried to think through a difficult problem. You know, and it brings me, pete williams, to Something Else she tried to emphasize quite a bit, which was, and i found it interesting, many of the republican senators have wanted to say, your mentor, Justice Scalia, your mentor, Justice Scalia, and even democrats have used this, okay, scalia thought this, do you think this, scalia thought this, do you think this. She finally said, if confirmed im not going to be Justice Scalia, im going to be justice barrett. Her opponents have played that a lot, a long list of cases Justice Scalia decided in which theyve said, if thats her mentor, this is her position. She said it specifically on the question of samesex marriage. The questioner noted that Justice Scalia dissented in the obergefell decision and when the Supreme Court overturned the defense of marriage act. She said, look, you get justice barrett, not Justice Scalia. She also said early on, textu textualists originalists dont always agree on how to decide cases. It was neil gorsuch who wrote the opinion that said the 1964 Civil Rights Act does cover discrimination on the basis of Sexual Orientation or transgender status and that was certainly a break from other textualists or originalists but his opinion is a very textualist opinion. So thats an example of where they dont always agree and thats what shes saying as well. On precedent, she also said that just disagreeing with the previous decision is not enough to overrule precedent. Shes given the sort of classic answers on abortion or any of these hot button cases that both republican and democratic appointees to the Supreme Court have always said you have to respect precedent and i have no preconceptions. One of the least legal moments of the back and forth so far today was dick durbin and judge barrett on george floyd. I want to p