Insurance. So typical and common for people. Put it off. When julia finally saw a doctor without still without insurance, she learned she had a brain tumor, and she was eligible for coverage. Under connecticuts Medicaid Expansion program, which was created by the Affordable Care act. In her words, it was a godsend. I raise these stories in part because as you know, im sure, protection for people who suffer from preexisting conditions is, in fact, on the line. In this case that will come to the Supreme Court only a week after the election. I want to be chriscal clear because you stated to senator feinstein that and im going to quote, so far as i know the case next week doesnt present that issue. Its not a challenge to preexisting conditions, coverage, or to the extreme lifetime maximum relief from a cap. And technically youre right, but, its a big but, if the trial court is upheld and theres no severability, the entire act goes down. That is what the Trump Administration is asking the court to do. Thats what the plaintiffs want done. Correct . I gather that senator coons showed the brief with the litigating position from the department of justice. I want to move on to another Health Care Case and this one involves some of the letters that senator hawley was mentioning and i feel i node to raise them because senator hawley asked about them. So did senator leahy, and i want to just clarify what they mean, and i want to make absolutely clear i detest and oppose any religious test. I am not asking you any questions about your religious beliefs. Okay. Im going to be asking some questions about your legal positions. So in case im unclear in any of my questions i wan you to tell me. Thank you, senator. You signed onto this 2006 open letter sponsored by an organization then known as the st. Josephs county right to life which was published in the south bend tribune. Is that the letter that senator hawley was mentioning . I believe the statement thats on the left i think senator hawley had read the language. I cant remember verbatim but Something Like we support the right to life from fertilization to natural death, yes. The letter and ad referred to roe v. Wades legacy as, quote unquote, barbaric, correct . I dont think thats part of the statement. I think thats part of the ad that appeared on the page next to it. Appeared sidebyside, correct . I believe that it ran that way in the newspaper. Im not sure that i ever saw it in the newspaper but, yes, that is my understanding. Thats based on yes. And the st. Josephs county righttolife sponsored the letter you signed. I think the righttolife organization was the one who presented the statement that i signed at the back of church. I want to give you an opportunity to clarify. You didnt disclose that letter when you were nominated to the 7th circuit in 2017, did you. I did not, senator blumenthal, and im glad you brought that up. I want to clarify for the record, number one, i didnt have any recollection of that letter. I signed it or the statement. I signed it almost 15 years ago, quickly on my way out of church, and, you know, the questionnaire asks me for 30 years worth of material and ive produced more than 1,800 pages. I didnt recall it. After it came to my attention, i did go back and look at the questionnaire and i actually dont think that particular statement is responsive to question 12, which is, i think, the closest that it would come. I dont think its responsive. But in any event, it is part of the Public Record, and im very happy to discuss it. It is part of the Public Record now and its a letter, the questionnaire asks for letters. Have you disclosed it now . Have you provided it officially . So, senator, as i said, ive supplemented my questionnaire with other material that came to light that i do think was responsive. That one, and i would be happy to answer questions if you want questions for the record with more specific detail, but i did not understand that to be responsive to question 12, i think it is. In fact, we know about it only because the guardian made it public, i believe. Let me ask you about another letter, 2013 letter. You signed on to this letter regarding roe v. Wade sponsored by the University Faculty for life at notre dame. Youre a member of that organization, correct . I do. And the letter described roe v. Wade as behind me infamous and it stated that the signatories, quote, renew our call for the unborn to be protected if law. Correct . Yes. I believe the full statement says, im testing my eyesight here. Our full support for our universitys commitment to the righttolife because notre dame is a Catholic University and embraces the teachings of the Catholic Church on abortion. And so as a faculty member and member of the faculty for life i signed that statement. But you didnt disclose that letter. Again, senator, i produced 1,800 pages of material and all six prior nominees have had to supplement because they overlooked things. 30 years of material is a lot to try to find and remember. You disclosed it, in fact, just about three days ago, i believe, right . Because thats when it was brought to my attention. I had no recollection of it. It surfaced in the press and came to my attention. And i supplemented. I did think it was responsive because it was a part of an organization and i belonged to the faculty for life at the time. If this process maybe had been a little less rushed you might have had time to go back and recall some of these documents . As i said, all six nominees, the most recent six, had to supplement, too. I dont think its time. Its the volume of material. And when you and i spoke when you appeared in connection with your 2017 nomination, i didnt have the benefit of any of these documents, although i asked you about right of privacy and the validity of roe v. Wade. Senator, i said on my sjq when i was nominated to the 7th circuit and im saying it again now i produced all the material i could find and i conducted churches to find things that i forgot and i didnt find that. I understand someone had to manually go to notre dame and go through back archives. I didnt remember it and i didnt find it. I was not trying to hide it from you. Judge, i apologize for interrupting you and i press for time. Sure. Respectfully, i want to share another Health Care Story with you. It is about samantha one night in january 2017, samantha went out with a few friends and coworkers. She woke up the next morning in a coworkers home confused, scared, covered in blood. She had been raped. After she was raped, samantha was, in her words, a zombie. She couldnt change clothes. She couldnt shower. She couldnt drink or think. She want this hed this event to erased from her memory. Samanthas attacker also began stalking her, and she was struggling with depression and ptsd. In march samantha took a pregnancy test and then another and another. It kept coming back with the same result, pregnant. After the horrible violence she faced, she simply couldnt process that she was now pregnant. When samantha shared her story with me, she said, i knew if i couldnt end this pregnancy, it would end me. So she decided to get an abortion. Now, as you know, judge, the landmark roe v. Wade decision gave her that option. It gave women the right to decide for themselves whether and when to have a child. Roe didnt compel samantha to get an abortion. It didnt tell her what she had to do, but it gave her that choice. The question that i would like to ask you concerns your legal position. Does the constitution protect samanthas right to have an abortion . Roe v. Wade clearly held that the constitution protected a womans right to terminate a pregnancy. That Central Holding was upheld and spelled out in greater detail the test the court uses to consider the legality of abortion regulations. Now im asking you this question because the group that sponsored the first letter st. Josephs county right to life, as it was then known, states, quote, abortion is never the right answer even in cases of Sexual Assault or where the pregnant womans life is in danger. And the purpose of the letters that you signed seem to be a statement of legal position. But youre saying that there is a constitutional right to an abortion . Senator, the statement that i signed from the st. Joseph county right to life didnt say anything about rape or incest or any of those things. It simply validated the teaching of my church on the sacredness of life from conception to natural death. What i hear you saying is in the constitution there is that right. You mean when i was talking about roe and casey a moment ago . Well, roe was correctly de l decided. What i was saying roe held that the constitution protects a womans right to terminate a pregnancy. That casey reaffirmed that holding and, indeed, many cases after casey have affirmed that holding again, a womans health, for example. So i think we might be talking past each other because the statements that i signed were statements of my personal beliefs and not not your personal belief, your honor, your legal position. Are you willing to say that roe was correctly decided because thats really the essence of the question here . Well, senator, as ive said to others of your colleagues in response to questioning that its inconsistent with the duties of a sitting judge, as has been the practice of every nominee who sat in the seat before me, to take positions on cases the court has decided in the past. Well, i think samantha and a lot of rape survivors would be really deeply fearful about that answer because it provides no reassurance that you believe that roe was correctly decided. Let me talk about tracy. I want to tell you about her because she, again, came to me and told me she was diagnosed with stage four endometriosis and caused an unhealthy pregnancy. But as she says she was one of the, quote, lucky ones. She had access to care and was able to receive treatment to assist in getting and staying pregnant. And i have encountered, maybe you have, many members of the military, veterans, who have sought similar kinds of treatment and some of them because they suffered wounds of war. Tracy was scared when she saw the executive director of the st. Joseph county righttolife recently stated, and i quote, we would be supportive of criminalizing the discarding of frozen embryo os or selection through the ivf process. So tracy wanted me to pose this question. Is it your legal position that making ivf a crime would be constitutional . Senator, the statement that i signed, as we discussed, affirmed to the belief of my church with respect to matters of life. Im not asking about what you signed. Im asking about your present legal position. Is making ivf a crime constitutional . Sorry, go ahead. Sorry, i was trying to answer. But youre quoting positions from the st. Joseph county righttolife. Im not a member of that organization, and so im not responsible for statements that they make. The statement that i signed said what you and i have discussed, and it said nothing further than that. And as for what policy position someone might take, as ive said to your colleagues, its not up to me to be in the business of expressing views, and i am happy to talk about views that i expressed when i was a private citizen. But now im a judge and so i cannot publicly express views. Just to be absolutely clear, im not asking about the st. Joseph county right to life or their positions, and i understand you may or may not disagree or agree with them but your legal position, ivf treatment, and im not going to ask again, just this last time, criminalizing it. Would it be constitutional . I think theres a clear answer. But, senator, ive repeatedly said, as has every other nominee who sat in this seat that we cant answer questions in the abstract. That would have to be decided in the course of the judicial process. Some legislature would actually have to do that and then litigants would have to come to court. There would have to be briefs and arguments and consultations with could go hells and opinion writing and precedent. An offthecuff reaction would circumvent the judicial process. Well, again, i think tracy would find that response somewhat chilling because she and thousands, maybe millions of women, potential parents, would be horrified to think that ivf treatment could be made criminal. I understand youre not answering the question but i think she would be deeply fearful. Do you think that it would be constitutional to make it a crime for doctors or Health Care Providers to provide that care or abortion care . Senator, again, thats a hypothetical question and so, as ive said, to give offthecuff responses about abstract issues and i should clarify to say it doesnt matter if theyre hard questions or easy questions, its just any questions that call for an abstract legal opinion are not ones that are appropriate for me to give either as a sitting judge or as a nominee. Those questions in my judicial role can only be answered through the judicial process. Just to be absolutely clear there are millions of women like samantha and tracy and the veterans i mentioned who are terrified to think their doctors and Health Care Providers would be potentially in jail, at risk of prosecution, doctors exercising currently protected rights that samantha says saved her life and i believe our Health Care Providers are heroes particularly during the pandemic. I want to ask you one more question about these documents. In the 2013 letter that you signed, there is a following stateme statement. We renew our call for the unborn to be protected in law, in law and welcomed in life. What does it mean for, quote, the unborn to be protected in law . Does that statement mean there is no valid constitutional protection for an abortion and, therefore, roe v. Wade should be overturned . You know, i think that statement is an affirmation of life. It points out that we express our love and support for the mothers who bear them. Again, it was a statement validating the position of the Catholic University at which i worked and support for life and to support women in crisis pregnancies, to support babies. Its really no more than the expression of a prolife view. I expect well be talking more about this issue tomorrow. I want to move now to another topic. You and senator durbin and others talked about your dissent in canter v. Barr, and i think your approach here, in effect, usurps the legislatures role in making policy judgments. In the case of cantor which, by the way, you put first on the list of decisions that you thought were most important that you have written. Is that correct . I dont remember the order in which i listed them. It was first. I accept that. I just dont remember the order. I did list it. I remember listing it. Okay. But that decision seems to usurp the legislatures role in deciding who should be permitted to have firearms and who should not, because you decided the legislature was wrong to classify felons as not deserving of firearms. You decided as a matter of policy that when they were not dangerous they should have that right. Thats a policy or legislative judgment, and i think it has huge ramifications for real people across the country. And i want to tell you about one of them from sandy hook, connecticut. Natalie who is shown here with her brother daniel. Daniel was killed at Sandy Hook Elementary School in newtown, connecticut, on december 14th, 2012. Daniel was 7. I was there that day. I saw the parents after theyd learned that they had lost 20 beautiful children. And sixth grade he hgreat educa died as well. Natalie says that grief remains with her. But natalie, like newtown, is resilient and strong, and her grief and trauma have spurred hope and action. She and many young people across the country are leading the movement to deal with the he defensemen i can and scourge of gun violence in this country. What happened at sandy hook was not an isolated instance. 236 other Mass Shootings in the last decade, in the last ten years. Gun violence has taken more than 354,000 lives in rural communities, in urban communities all around the country. And im sure in indiana and south bend as well. Your opinion in cantor goes further than Justice Scalia and heller. In fact, you characterized it as kind of radical. It is, in effect, an outlier. And it is, in fact, radical. Did i say it was radical in the opinion . I think you said, quote, it sounds kind of radical to say felons can have firearms. Thats a direct quote. Oh, i didnt remember that particular language. You can im not i just dont recall it, but im not nitpicking about it. We can look it up. Thats fine, senator. I dont think youre making it up, trust me. Ill check it and look it up. But i know thats not the thrust of your question. It sounds kind of radical because it is. In fact, no courts of appeals except make the 7th circuit has adopted this reasoning. The Third Circuit, i think, has a rule the Third Circuit. Any others . Its come up the Third Circuit but i wasnt sure which one but thank you. My position was con cyst ent consistent with the third that had already been decided. And cutting through all of the legalese and weve had quite a bit of it going back and forth, what this approach does potentially is means that connecticuts gun safety provision, that the people of newtown, kristen and michael, on behalf of their son, ethan, who perished because of a gun that was unsafely stored, they championed a measure called ethans law. Common sense measures that might have prevented the death of shane oliver, janet rices son who died on october 20th, 2012. Shane was killed when he was 20 years old in hartford. He died fighting for his life in hartford hospital. Measures like the emergency risk order connecticut now has. 19 states have these laws. Theyve saved lives. And extreme Risk Protection laws which help minimize risk might well be struck down under the reasoning of your dissent. Respectfully, senator, my dissent would not reach even those issues. My dissent was about the narrow question about whether a felon who had sold fraudulent foot inserts could automatically be disqualified from his Second Amendment right on that basis. It said that guns can be kept out of the hands of the dangerous and it didnt say anything about other gun safety or background checks. Those are all issues litigated across the country and were not at issue in cantor. But supplanting the legislators judgment about when dangerous people should be protected from themselves if they are potential suicides, as a veteran in iraq found when his friend was going to take his life. The emergency Risk Protection order would have been available. Deciding what is dangerous, who is dangerous, when weapons should be taken away from them. If the courts are going to supplant the judgments of legislatures, if judges are going to legislate from the bench, thats the import of your reasoning in that dissent. It may not have dealt precisely with any of these particular laws, but the reasoning throws into doubt it raises the risk to many of them. Folks who live in connecticut are terrified of that prospect, at least sandy hook is a tragedy. So i express the deepest sympathy for those who have experienced that loss there and elsewhere. But cantor, you know, i hope you take some comfort from cantor being a much narrower decision that doesnt have any effect on those sorts of laws. Thank you, senator. Thank you, judge. Judge tillis . Thank you, mr. Chairman. Thank you, judge barrett. Mr. Chairman, before i get started, id like unanimous consent to submit a letter from my primary care physician indicating that ive fully complied with cdc guidelines, cleared, like 2,000 other north carolinians yesterday and im glad theyre healing. Without objection. I would like to put forward three letters in support of judge barrett including one from a former student who speaks very highly of your academic prowess but also your compassion. Without objection. I would also like to cover what senator blumenthal just did. I think we should go back, i believe you alluded to it, question 12a asks for books, articles, reports, letters to the editor, editorial pieces or other published material you have written or edited. Is it fair to say if you signed a petition did you not write or edit any of the petition you signed . I did not write or edit that. It also needs to be restated, i think you alluded to it, over the last six justices confirmed by this committee all of them provided Supplemental Information and in some cases after the actual hearing. So i appreciate you being forthcoming, that youve submitted 1,800 pages of documents. Mr. Chairman, just going back, i also wanted to mention that as a part of my journey through my time and have enrolled in two studies so far, ive going to donate convalescent plasma. Because this is being aired i hope anyone who has recovered from covid will try to do their part to heal. I intend to do my part. I also would like to consider the senate an essential business and i believe that the architect of the capitol and our attending physicians have taken great measure that we can safely come to work and i would encourage anybody to come to work. I want to go back to something senator feinstein said earlier, senator feinstein mentioned weve had a surge in applications for guns or purchases of guns. I wonder if a part of that where we find our society right now, were seeing great cities burned and looted. My Highway Patrol in North Carolina 75 fewer applications to go into the Troopers Academy and record high requests for retirement. We see that in new york. We see it across this country. I think people are afraid because many people, including people on this committee, are unwilling to condemn the facts of violence and Public Safety and condemn violence against Law Enforcement which is rampant. I lost a sheriffs deputy just about a month ago who was shot protecting a family. So, yes, senator feinstein, i suspect gun purchases are up. I suspect the root cause behind a lot of them have to do with peoples personal safety. To your family, i would encourage all your family members and your students who mercifully, your children are your students, too, were mercifully taking a break to treat social media like road kill, just dont look at it because if you do, youre going to regret it. I am going to also ask unanimous consent to put forth some articles or tweets from prominent people i think give you an idea of the gorilla tactics. Ill get to a number of other things. Behind the curtains were seeing people say all kind of things about you. One called you a white colonizer for actually adopting two haitian children. Another one calling you a hand maid in a clown car. They will be submitted for the record but the profanity used in there. Another one that says that, yeah, youre a good mom but that doesnt qualify you as a judge. What qualifies you as a judge being an extraordinary professor, student and jurist. I think these people need to recognize doing the bidding by attacking you outside of the committee is as bad as them being in this chamber. I also want to talk about the discussion on roe v. Wade and the Affordable Care act. Senator feinstein and i think the same two or three minutes said that she wanted to protect roe v. Wade but overturn heller. Those seem to be incongruent but ill leave that out there. Theyre asking to you legislate. I dont want to you do that. The one thing that is conveniently missed is something that i think most of the American People are at odds with the position every member of the conference supports. My granddaughter went to her twomonth Health Checkup today weighing in at 10. 1 pounds. You cant see this picture but im telling you from this granddaddys eyes shes gorgeous. She was born three weeks premature. She was discharged within 36 hours. My colleagues on the other side of the aisle want to talk about the Broad Strokes of roe v. Wade and not the policy that would allow the right to take that child away i held in my arms two or three weeks ago and eight weeks ago when she was 3 weeks premature. Judge barrett, i have complete confidence in your integrity. I have complete confidence that youre going to go and be a great justice. I do want to ask about maybe your experience when you were working for actually i want to start when you were in school. When you came in you were obviously a brilliant student, you did your homework. Weve heard your professors attest to your intelligence. Did you go into a classroom the professor was espousing one position and you were espousing another one and you came out with a different perspective . Sure. Did you ever change your professors perspective . Im not sure about that. Thats an unfair balance. Now fast forward to when you were a clerk for Justice Scalia. I saw an interview last week when i was in quarantine of Justice Breyer talking about these mounds of documents that his clerks would provide him. He would quickly go through him. Its a fairly quick process to winnow out the ones there are no disputes, no split circuit. Moved through pretty quickly. I understand clerks would be across the ideological spectrum. Was that the case when you were working for him . He had four of us, four clerks, and we were not we were not all of the same mind. There was a mix. Were there ever cases when you went before Justice Scalia and you thought that maybe he was leaning one way where he listened to the arguments of the clerk and modified his position or like the professor, no discussion . I think he definitely listened. We would go in before an argument when he was preparing and he would pepper us with questions and go back and forth. He wanted to hear it from all sides. He was part of the give and take. He was the one with the commission and the one who made the decisions. Thank you. I will yield back more time than most other members. Mr. Chairman, you opened up this morning talking about the Affordable Care act. I dont think theres anybody in the u. S. Senate that doesnt want to make sure every picture weve seen here that they have Affordable Health care and can be cared for. But what we have here in the Affordable Care act is something that is so flawed that the majority of the Democratic Candidates for president all raised their hand and said it needed to be replaced with something they called medicare for all which could be medicare for none. We know the broken promises of if you like your doctor, you can keep it. If you like your health care, you can keep it. Were not talking about the thousands already forced off their job health care because employers changed hours and now instead of working one fulltime job you have to work two fulltime jobs because the businesses cant afford it. We need to protect everyone but we need to make sure that people who have a help plan under the Affordable Care act can use it and the catastrophic situations its life changing and thank god its there for them. What about other people who will only use it if they have a catastrophic situation because they cant afford the copays, they cant afford the underlying costs . We need to fix that. We shouldnt expect the justice or the Supreme Court to fix it. That is our job. We should show up for work and get that done and we should also work on all the other things this country is suffering from as a result of covid. Thank you, judge barrett. I look forward to supporting your nomination. Thank you, senator tillis. Thank you. Thank you, mr. Chairman. Mr. Chairman, i want to reiterate my objections to holding this nomination hearing instead of working to provide relief for the millions of americans who are suffering during this pandemic. Three weeks ago our country crossed a tragic milestone losing more than 200,000 americans to covid19. That is more than the entire population of the big island in hawaii. More than the population of tempe, arizona, cedar rapids, wilmington, charleston, south carolina, waco, texas. I could go on. 200,000 american lives lost. This is a photo of a memorial outside the white house where President Trump held a reckless super spreader event two weeks ago to announce the Supreme Court nomination. The memorial shows 20,000 empty chairs, one chair representing ten american lives lost to covid19. One of those chairs represents veronicas grandfather who is pictured here with veronica. Veronica who is from iowa experienced the impact of the Trump Administrations failure to address the pandemic. Her family is composed of essential workers working on the front lines of this pandemic. Her mother who worked at a fast Food Processing facility caught covid19 at work and was eventually hospitalized for seven days. Thankfully her mother recovered but then her grandparents were admitted to the hospital. Sadly her grandfather didnt make it. After experiencing all of this tragedy veronica shared, quote, it is even more insulting to see a senate that is more concerned with rushing through a Supreme Court nominee rather than focusing on providing relief to all the hard working people that gave them their current leadership positions, end quote. Many americans agree with veronica. They are sitting at their kitchen tables wondering how they are going to buy food, how theyre going to pay rent. Millions of them are out of they dont have jobs. Theyre going to food banks for the first time in their lives. So rather than coming up with a bill that meets the needs of the urgency of this moment, republicans are just coming up with piecemeal bills because we know that within your own caucus you cant agree on one which will that fits the critical needs. There are at least 20 republicans we heard who have said were done. Were not doing any more to help the americans who are suffering with covid. So here we are racing forward with this nomination while the rest of the country is wondering what the heck is the senate doing, particularly the Senate Republicans. So i agree with all the people in our country who are asking, what the heck . This is hypocritical. This hearing shows the American Public exactly what my republican colleagues priorities are, ramming through another justice to the Supreme Court instead of helping the people in our country suffering during this pandemic. I have some letters of opposition to judge barretts nomination to enter into the record. These are letters from randa legal, the Japaneseamerican Citizens League and the National Asian Pacific American womens forum which was joined by 55 reproductive justice groups. I ask unanimous consent to enter these letters into the record. Without objection. Judge barrett, chief Justice Roberts has said the Judicial Branch is not immune from the widespread promise of Sexual Harassment and assault. As part of my responsibility as a member of this committee and all of the committees on which i sit, to ensure the fitness of nominees for a lifetime appointment to the federal bench or any of the other positions for any of the committees on which they appear i ask each nominee these two questions and i will ask them of you. Since you became a legal adult have you ever made unwanted requests for sexual favors or committed any verbal or physical harassment or assault of a sexual nature . No, senator hirono. Have you faced discipline or entered into a settlement related to this kind of conduct . No, senator. Judge barrett, do you think it is appropriate for our justices to consider real world impact in their Decision Making as Justice Ginsburg noted in a number of their dissents . Senator, the doctrine of stare decisis is a good example because the factor reliance interests takes into account the real world impact the way people have ordered their affairs and relied on decisions. So there are contexts, yes, that it is part of the doctrine. So you would say then youve been listening to all of us here yesterday as well as today talk about the real world impact of the striking down of the Affordable Care act and would all of those impacts be factors that would be important for you to consider should you be a justice . Senator, to be clear, i have the utmost empathy of the stories you have told including the story of veronicas family are very moving. If i were a justice, the commitment that i would make to you and all people aked by the laws is that i would follow 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 thwart the policies you have adopted. Are you saying the impact of the Affordable Care act on the millions of people who rely upon it those you would deem to be policy considerations that we should address . Senator, i think that you choose the law and youve structured the Affordable Care act. Its a complex, long statute. I think you set the policy, and then i think when a court has to interpret the statute or decide how it applies in a Certain Circumstance the court looks traditional legal materials, looks for the briefs, it listens to the real world impact on the litigants before the court arguing the case because every case affects real litigants, affects real people. I said in my Opening Statement that, you know, when you pass statutes theyre often named for the cosponsors of the bill, but cases decided by all courts are typically named after the parties. They affect real people. Are you saying all the stories we brought forth yesterday and the millions of people who are relying on the Affordable Care act can rely upon you that those would be considered by you, that you would consider those to be legal arguments you would consider . When you say you are going to make a decision based on the law, the real life stories weve been talking about you would consider those to be part of the law . Senator hirono, every case that comes before a court because, as i was saying earlier, no case comes before a court unless it involves real, live people who have had a real life dispute. You need to take into account the real world consequences of the parties before it. So does that mean that you would agree with Justice Ginsburg that the court should be taking into consideration the real life effect of the decisions that they make . Because she wrote a number of dissents saying that the majority did not consider the real world impacts of their decisions. So are you aligning yourself with Justice Ginsburg in terms of what you would consider real life impacts and the affect on your decision regarding the law . Senator, i dont know what context in which Justice Ginsburg was describing that. What im 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, for example, in the doctrine of stare decisis. Ill get to your views of precedent in a moment. Goodyear tire company, an area manager, a position held mostly by men, lilly was paid less than all of her male counterparts. She sued for pay discrimination and a jury agreed. But the Supreme Court kicked lillys claim out of the court for being too late. The conservative majority, including your mentor Justice Scalia, interpreted title 7s 180daytime limit to mean lilly had to have filed her claim within 180 days of when her salary was decided instead of accepting the common sense approach of viewing her paychecks as an ongoing part of pay discrimination. Justice ginsburg strongly disagreed with her conservative colleag colleagues approach. In her dissent she pointed out the many challenges women face in discovering pay disparities including how Many Companies keep salaries confidential. In a stinging rebuke she said, quote, the court does not comprehend or is indifferent to the insidious way in which women can be victims of pay discrimination, end quote. In another case in 2018, employees who had been illegally underpaid, join together to seek back pay in court. To block this effort their employers forced them to sign an arbitration agreement forced th prohibit collective actions. Actually had to sign these arbitration agreements in order to have a job, keep their job. So the Supreme Court conservative majority including Justice Scalia sided with the company and had a federal arbitration to override two worker Protection Laws instead of recognizing that the worker Protection Laws fall sensibly within the exceptions in the arbitration law, meaning that the worker Protection Laws should prevail. Again, Justice Ginsburg strongly disagreed with the apropane to the case and in her dissent she pointed out that blocking joint lawsuits would deter workers from seeking individuals unpaid wage claims because of the cost of lawsuits and fear of retaliation. She warned the majority decision would result in hurting vulnerable low wage workers. Now those are the kind of real life impacts, the reality of women who are not paid the same as their male counter parts because of sex discrimination happening, that she has to way of finding out about or of workers who are fworsorced to s an arbitration laws that overrides other laws. So do you think Justice Ginsburg was wrong to consider real world impacts in her Decision Making. Well, senator, both the case youre talking about, Lilly Ledbetter, both that case and epic systems are precedents of the court and as ive said a number of times during the hearing, i cant really comment or grade thumbs up or thumbs down as Justice Kagen put it prior precedents or say how i would decide them. They are precedents of the court that do not take into consideration the real world factors at play here. In fact of the case of epic systems, the court sided with the corporation as opposed to the workers who are trying to remedy and in Lilly Ledbetter she was totally out in the cold. So again, the court did not. So they established precedent but not based on real life impack. So as much as you sit here telling me you would follow the law, after all the law, for example, the Affordable Care act, that law embodied a policy that says we want as many people as possible to be covered under insurance and if the Affordable Care act is struck down, that policy, that law would be struck down. So i know that there are some discussion about some distinction that you make about policy versus the law and i find that distinction to be a fiction because every law or most laws we pass are supposed to have real world impacts. Other wise why should we pass a law. So t so the fact that youre not able to i think it is pretty clear. Let me rephrase that. You do consider Justice Scalia to be your mentor, that youre judicial philosophy is in alignment with him and 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, she looked at the real world impact, Justice Scalia was not. So id say that when it comes to the Affordable Care act, the real world policy considerations that will not be taken into consideration by the conservative judges would mean that 23 Million People could lose their health care. That 133 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 preexisting conditions and millions of americans would once again face lifetime limits on coverage for essential services. That 8. 7 million women would lose coverage for critical Maternity Care services and we know that black and native women are two to three times more likely to die than white women from pregnancy lated cases, that americans could lose coverage for essential Health Benefits like prescription drugs and menial health care and no longer would young adults be able to stay on the Parents Health Insurance Plan until age 26 at a time when our country is dealing with massive job losses. So in my view, you have posed an artificial distinction between policy considerations that left up to us and following the law, because if your criticism of Justice Roberts decision in the Affordable Care act, if that was something that he followed, he would have struck down the Affordable Care act. That is that is if he followed your criticism of him, in sustaining the futurecaaffo care act, he would have struck it down. So i would conclude that your approach is, in fact, not like of that Justice Ginsburg who did care what would happen. Let me just tell you one story of a person who will be impacted in the real world if the Affordable Care act is struck down. And i know that so many of my colleagues have already established that the president expects you to strike down the Affordable Care act and youve already established that you made no such commitments but clearly that is why this whole process is occurring so that you could be sitting on that court and in time to hear the Affordable Care act by the Supreme Court on november 10th. So, one of the people who have will be impacted is liz death from texas. She moved to texas for a job and thought she would have a stable income and Health Care Coverage and all of that changes when she lost Health Insurance and she couldnt get proper treatment for her asthma. She had to resort to using friends inspired inhalers and the aca allowed her to get Health Insurance and protected people with preexisting conditions like jordan who i talked about yesterday and she has a very rare illness that would require 500,000 per year just for her medication. And were it not for the Affordable Care act, she wont be able to afford it. Who could afford 500,000 a year to keep going. And also people like kimberly, i talked about her yesterday. They say they enabled her to get a mammogram which she wouldnt have been able to get and that revealed that she had Breast Cancer and she had a mastectomy. So this the real life impacts on people like Elizabeth Jordan and kimberly where you say youll follow the law, it leaves me wondering whether all of these real life impacts are what you would call within the scope of the law that you would decide should you become confirmed. November 10th youll hear the case, you will be deciding on the constitutionality of the Affordable Care act. And by the way, you notice that the issue in the Affordable Care act was one of, what was it that you said receiver ability. Sever ability. It is the constitutionality of the law. Because the District Court issue is whether the District Court in texas was correct in deeming the entire law unconstitutional. So we are facing the entire law falling by the wayside. Let me move on. So, youve been also asked a lot of questions about whether or not you would overturn roe v. Wade and clearly President Trump expects that you would do so because as we said, if we put another two or perhaps three justices on the court, that will happen meaning the reversal of roe v. Wade will happen automatically because im putting prolife justices on the court and as far as senator holly is concerned where he said i will only vote for those Supreme Court nominees who have explicitly acknowledged that roe v. Wade was wrongly decided and there is a whole quote i have from him. But after you were nominated senator holly made that you passed the litmus test and i think your record is awfully clear and she meets my standard of having evident in the record. And by the way he noted that he expected this evidence in the record not from your post nomination assurances to him. So, on your prior record he said you met the standards. So we usually expect justices to uphold and apply long standing precedent. So was the president wrong in concluding that you would vote to overturn roe v. Wade . Well, senator, again, i cant make any statements, no hence forecast or previews as Justice Ginsburg put it about any case or any precedent. But i will repeat what ive said, you know, throughout this hearing, that i made no promises to anyone. I have no agenda. There are 598 volumes of the United States reports. That is something that judges build on, justices dont go to the court to start having a book burning. I know that you have reiterated that time and again but were left with the positions that you already taken. So the 2016 newspaper ad that you signed said you quote oppose abortion on demand and defend the right to life from fertilization to natural death. It is not just the fact that the newspaper ad you joined said what i just read but it also said, quote, it is time to put an end to the barbaric legacy of roe v. Wade. In a 2013 speech you gave you said the roe decision admitted abortion on demand and you said you opposed it in 2006. So what underscores my concern about your willingness to overturn roe v. Wade, which is really the expectation that the president has and which senator holly fully expects you to do, because youre met his litmus test. But you note stare decisis which is press dent. And you have argued that a justices duty to follow the constitution means she should, regarding your view on precedent, that she should quote, enforce her best understanding of the constitution rather than a precedent she thinks clearly in conflict with it, end quote. So in fact you say constitutional cases are the easiest to overrule because you bring your own assessment of what the constitution requires and as you said, if the precedent is clearly in conflict with your view of the constitution, then that precedent falls by the wayside. So, you did indicate that there are a few cases that are immunized from overturning because they are they wouldnt be challenged in the first place. Ie brown versus board of education. But roe isnt one of those cases because we know that there 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. So you also said in that speech that even if roe is not overturned, you said, without overturning roe, you explained, quote, the question is how much freedom the court is willing to let states have in regulating abortion. And so 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 restrictions, six cases involve bans on abortion starting at gestational ages ranging from 6 to 24 weeks and a tip of procedure, dilation and evacuation counts for all second trimester abortions one case involving a requirement that fetal remains be buried or cremating imposing unnecessary requirems on abortion providers including transfer agreements with local hospitals and reason bandss, two cases related to parental notification and consent. There are real reasons why the American Public is concerned that you will overturn roe or basically strip it of all meaning so that it becomes a nullity because you will have these cases that, as you say, the open question is, how far the Supreme Court will go in letting states put limits on abortion. So, that is why a lot of people are very concerned about your views as articulated prenomination which senator holly said you met his test. This morning senator feinstein asked you a question about the Supreme Court 2015 decision in a burger fell v hodges, a case in which the court recognized the constitutional right to samesex marriage and i was disappointed that you didnt get a answer and do you agree with Justice Scalia that no right exists in the constitution. Even though you didnt give a direct answer i think your response did speak volumes, not once but twice. You used the term sexual preference to describe those in the Lgbtq Community. And let me make clear, sexual preference is an offensive and outdated term. It is used by antilgbtq activists to suggest that Sexual Orientation is a choice. It is not. It is a key part of a persons identity that Sexual Orientation is both a normal expression of human sexuality and immunable, was a key part of the majorities opinion in the case which scalia did not agree with. So if it is your view that Sexual Orientation is merely a preference, as you noted, then the Lgbtq Community should be rightly concerned whether you would uphold their constitutional right to marry. I dont think that you use the term sexual preference, i dont think it was an accident. And one of the legacies of Justice Scalia and his particular brand of originalism is a resistance to recognizing those in the Lgbtq Community as having equal rights under our constitution. And in 1996 Justice Scalia wrote a decision in rowe very edmonds to discrimination against the Lgbtq Community in launch v texas dever febding the right to prosecuting someone for sexual activity. Ten years later Justice Scalia wrote another dissenting opinion, this time defending the federal governments right to deny federal recognition of samesex marriage and two years after that in burger feld Justice Scalia wrote another dissent and argued there was no constitutional right to samesex marriage. So under Justice Scalia judicial philosophy which you have told us is your own, states could openly discriminate against the Lgbtq Community and samesex couples could be denied the right to get married and be thrown in jail if they engage in sexual intercourse. There are 11 million adulls who identify as lgbtq living in this country since the case was decided in 2015. 293,000 samesex couples have gotten marry and many are rightly afraid if you are confirmed youll join with other conservative members of the court to roll back everything that Lgbtq Community has gained over the past two decades and pushed them back into the closet. Now, two sitting justices are already calling for oberger feld to be over turned. Last week Justice Alito concurred with the courts decision to deny a case involving a former Kentucky County Court who refused to issue marriage certificates to samesex couples. They accused the court of and this is justice said alito and thomas, they accuse the court of reading a right of samesex into the 14th amendment even though this right is found nowhere in the text and these two justices signal that oburger feld is a problem that only the court could fix. So coupled with your use of the term sexual preference, coupled with your view on precedents and that a justices view or her own analysis of the constitutionality should overtake or over come precedence if it is in conflict. This is why so many people in the Lgbtq Community are so concerned that you would, in fak, join the signaling that these two justices have already put out there that oburger feld will fall by the wayside. Thank you, mr. Chairman. Thank you. Senator ernst. Thank you, mr. Chair. And judge barrett, thank you so much for being here today. With your beautiful family once again, we appreciate the support that you are showing to judge barrett by being here today. And judge, i just 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 . Thank you, senator, ernst. I would like to make a quick followon to some of senator hironos comments. One, ive said a number of times during the hearing that i cant comment or grade existing precedent and i want to be clear that the point of doing that is not to say whether i agree or disagree with it, it is not to implicitly signal that i do disagree with it, it is designed to be neutral. So in saying that i couldnt opine on whether oburger feld was rightly decided or not i was not indicating disgraemt with it, the point of not answering was to simply saying it it is inappropriate for my to say a response and the second point was to say i didnt 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 to oburger feld holding with respect to samesex marriage. Thank you for that. I appreciate the clarification. And it goes back to the discussion that you had with senator sass on the black robes, when you put that robe on, you are neutral, correct . Yes. Yes, thank you. So i did want to go back. Because the issue of coronavirus has come up yet once again in the committee room. And i just wanted to make a point and clarify that the senate gop did bring up a relief bill. A number of weeks ago. And in that bill there was a 300 boost in weekly Unemployment Insurance benefits, there was a second pass at Paycheck Protection Program for our small businesses. There was additional 105 billion for k through 12 schools and colleges with new scholarship programs and 15 billion to help working parents find accessible child care options, there was support for farmers and ranchers impacted by the pandemic. There was 31 billion 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. Liable protections for schools and Health Care Providers and an expanded charitable deduction for contributions made during this 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. And our greatest sympathies to those impacted all across the United States. So mr. Chairman, i would like to enter into the record, there is three letters here for the committee and an oped, a letter of support from 48 Christian Women scholars, the second is a letter from a group of governors all across country and including our own Iowa Governor kim reynolds strongly supporting the nomination of judge barrett. The third is a record letter for from tracy loveit, who was with judge barrett where they both served on the scotus clerk class of 1998. And also an editorial by Derek Mueller from the university of iowa college of law that appears in the gazette of cedar rapids, iowa, and this professors had judge barrett at Notre Dame Law School and he does say she treated all law students from all backgrounds with dignity and respect. If i could have those entered into the record. Without objection. Thank you. And judge barrett, i am pro life. I am pro life. And i see that judge by your faith and as has been aptly pointed out many times over by our colleagues across the aisle that you are prolife. But once again would we reiterate your stance as a judge. So as a judge, my personal moral beliefs, which i have not that i could think of, im not expressing them publicly right now because now that im a judge i cant sign statements like that one that i did 15 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, you know, it would be in conflict with my judicial oath. And i know you consider yourself to be an originalist as you discussed earlier with senator sass and the originalist view would lay a jij to carry out her constitutional duty of impartiality in applying the law and this takes real courage. An the courage you have displayed thus far as a federal judge prompted a coalition of groups to send me a letter supporting your nomination. Susan b. Anthony list led this Coalition Letter that would you like to submit to the committee for the record. And i know this is going to make a number of members on the Committee Just very squeamish, because they are a pro life organization. But with this in mind, i wan to take a moment to read part of this letter. Quote, judge barrett has proven herself to handle disputes impartially. Approaching cases as a textualist and a originalist who loves the constitution. She is a jurist to rightly leaves politics to politicians and legislating to legislators and ill quote further. Quite apart from whoever policy views she may have on the matter, judge barrett reasons to a proper result in each case before her as a federal apellat judge appropriately following controlling precedent, in february 2019 she joined a Panel Decision upholding a law creating a buffer zone around abortion facilities. This buffer or bubble zone case being referred to is price versus city of chicago. Judge barrett, could you please give us an overview of the City Ordinance that was challenged here and explain how precedent established by the Supreme Courts hill decision influenced your reasoning of the case. Yes. I was on a panel, there was a challenge to a bubble zone ordinance which essentially means it was to describe it, it limited where abortion protesters could go to do sidewalk counciling or leafletting things or things they identified as the activities they desired to undertake in the expression of speech outside of the abortion clinic. The Supreme Court has a case called hill versus colorado and that case said that such bubble zones, especially because this one in chicago was nearly identical as i recall with the one that was at stake in hill, said that they did not violate the first amendment. So our panel, were bound by that precedent and that was a case involving abortion but my duty as a judge was to follow the governing law and that governing law in that case was hill. Absolutely. And thank you for that clarification. And i think it is important to point that out. Because in that case using precedent, it did favor that abortion clinic. Is that correct . That is correct. Thank you very much. So i would like to submit this for the record. Thank you. Now, turning to topic of agency rule making, really sexy topic. Something that we have not not something that 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, iowa, or the farm fields over in clinton countries, but congress isnt the only body capable of overstep. Executive agencies could be just as guilty of this as weve 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 versus army corp 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. Im very supportive of a less expansive definition of wotus and encouraged by how you approach this decision. Farmers in iowa are encouraged by this development. I believe then as i do now that the obama administrations clean water rule or the wotus rule was unconstitutional. But i also want to talk about agency rule making that i believe was constitutional, which is illustrated in a case that tenth Circuit Court has recently ruled on, atti issue i the case were three exemptions the epa granted to Oil Companies allowing them to avoid obligations to blend renewal fuel under the clean air acts Renewable Fuels standard. These oil refinery exemptions which were not disclosed to the public were challenged by renewable fuel producers who said that they only found out about the waivers because of investigative news reports. The tenth circuit concluded in this case that the Renewable Fuels producers were injured by the epa exemptions and thus had standing to sue. The court also found that the epa exceeded his Statutory Authority in granting petitions because the agency may only extend previously existing waivers. In the case of the three refiners, there was nothing to extend because they have let their exemptions lapse. The three refineries have not received exemptions in the years preceding their petitions as required by the statute. However, in the wake of this tenth Circuit Decision, small resfienery flooding 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 clain of continuously extended exemptions. These Oil Companies have also appealed to the tenth Circuit Decision to or the ten. Circuit decision to the Supreme Court. So while im not going to ask you to speak on all of this, and what is going on, the problem here, bottom line, is that the epa wasnt following the law. They took the law that congress passed, they twisted it, and interpretted it for the benefit of Oil Producers and that harmed our iowa farmers. I know, again, you cant speak 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 . Well, i think that the courts role in reviewing the lawfulness of Agency Action is largely governed by the administrative procedure act. Which governs the way that agencies could do their business and outlines what their authority could be. There is also a doctrine called chevron named after a case. And many times if were talking about a chevron issue, were talking about an issue of statutory interpretation and it sounds like that is mostly what youre thinking of. And an agency, when a Court Reviews whether an agency has exceeded its lawful authority, it goes to the statute that you and Congress Enact and interprets that statute, looks at the text, and tries to tell whether youve given the agency, given the 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 farther than the text of the statute permits, then it is the rule of the court to say that that action, you know, was in conflict with the statute and therefore illegal. And what happens if there is an actual question on the intent of the law . Well, a statute in this context, in a context of a chevron type challenge to agencies and agencies interpretation of it, you would interpret the statute in the same way though you would interpret any other statute. So as i talked with senator sass earlier my only approach would be textualism. So my approach to language, the intent of the statute is best expressed through the works. So looking at what the words would communicate to a skilled user of the language. Very good. Well i appreciate it. We do have a little bit of time remaining so again i want to thank you. I want to thank your family very much for lending their support to you through this process, it can be a bit grueling. But i do have to say, though, your temperament throughout the entire hearing has been truly commendable. So thank you so much. I look forward to working with you further and with that, mr. Chair, i will reserve my time. Thank you, senator ernst. Judge, are you okay to do two more . Sure. So senator booker, and senator cray poe and then a 20 minute break to grab a bite to eat and finish up. Senator booker. Thank you. Mr. Chairman, your honor. Hi, senator. And so i spoke yesterday and i appreciate the attention which you gave me talking about how this is not a normal time. And i want to reiterate that one more time as cogently as i can, because this is Something Like weve never seen before in the history of the United States. Were not just days away from election day but people are actually voting right now. Close to a Million People in my state have already voted. And about 10 Million People have voted nationally. The only other time a nominee happened this close to an election was under president lincoln. Who declined to offer a nomination before the election but were in the midst of an ongoing election right now at a contentious time in our democracy. It is not normal because people are already speaking in this election and it seems like we are rushing through this process when many of my colleagues on this Committee Said just four years ago that we should not proceed to fill a vacancy that opened 269 days before an election. And the words of some of my colleagues including the chairman was to use our words against us, we would not do exactly what were doing right now. It is also not normal clearly because were in the middle of a pandemic. And we have tens of thousands of new covid infections every single day. Widespread Food Insecurity like we havent seen these kind of food lines in my lifetime, i dont think. People across the country are struggling. And unfortunately we see that we are right now not dealing with this crisis. We are instead literally having closed the senate virtually and the only proceedings allowed to go forward are not helping people who are struggling, but dealing with this. And 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 Something Like this in my lifetime, his former cabinet members and cleahief of stauf t about the dangerous he represents to the country we all love. In fact probably one of the most respected person on both sides of the aisle, general matsis went as far to say a plan would hasburn very reserved in his comment thats donald trump is a za danger to our democracy. Were 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 and thein defense of the court by saying he would only nominee justices who would tear down roe v. Wade and overturn a. C. A. And it is not normal amidst this all and again something that i find hard to believe that were talking about, is that we have a president who cannot commit himself to the peaceful transfer of power. Now in the light of this abnormality, most americans think we should wait on your nomination. It is an illegitimate process. Most americans think that we should wait. Today, and i appreciate you not following the news, but 90 fellow faculty members from notre dame wrote an open letter calling on you for the sake of our democracy, they didnt speak to whether youre right or left or whether you follow philosophy or qualification, they wrote a letter for the sake of our democracy, that publicly issued a statement that asking that withdraw from this nomination process and have it be halted until after the november election. This is not norm nall. And again the overwhelming majority of colleagues want to kate. So im going to ask you some questions if you told me five years ago that would be questions asked at a Supreme Court nomination hearing, i would have thought they wont be possible. But unfortunately i think theyre necessary to ask you and i hope that youll give me direct answers. The first one, youve already spoken towards issues of racism and how you deplore it and i imagine youll give me a short resolute answer, but you condemn White Supremacy, correct . Yes. Thank you. Im glad to see that you said that. I wish our president would say that so resolutely unequivocally as well. But were at a time that americans are literally fearful because their president cannot do that in the resolute manner in which you do. Im sorry that that question had to even be asked at this time. Here is another one. Do you believe that every president should make a commitment unequivocally and res luteally to the peaceful transfer of power . Well, senator, that seems to me to be pulling me in a little bit into this question of whether the president has said that he would not peacefully leave office and to the extent this is a political controversy right now as a judge i want to stay out of it and i dont want to express a view on so judge, i appreciate what youve said about respecting our Founding Fathers and the originalism. It is remarkable that were in a place right now that this is becoming a question and a topic. But im asking you, in light of our Founding Fathers, in light of our traditions, in light that everyone who serves in that office has sworn an oath with a quote 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 they have a 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 . Well one of the beauties of 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 good will of the American People that we havent had this situations that have arisen in so many other countries where there have been, where those issues have been present. Thank you, your honor. Do you think the president has the power to pardon himself for any past or future crimes he may have committed against the United States of america . Well, senator, booker, that would be a legal question, that would be a constitutional question and so in keeping with my obligation not to give hints preview or forecasts of how i would resolve the case, that is not one that i could answer. Well i think i agree with you. That it is an issue right now. Something i never thought would be an issue before. But it is an issue that our president may intend to pardon himself for future crimes or past crimes. If a president is personally responsible for several hundred Million Dollars in debt while hes in office, potentially to foreign entities, do you think he has a responsibility to disclose who his lenders are . Especially given thee m thee moluments clause. That clearly is an issue being litigated an one present in court is not one on which i could offer an opinion. Thank you. I think it is disturbing that were having this conversation. I think it is disturbing that we have a president that has brought what should be settled in the minds of most americans, president s should reveal what their debts are, especially to foreign nations. A president should not pardon themselves and condemn White Supremacy and commit to peaceful transfer of power. Youve seen a lot of my colleagues and i put up pictures of people in this room and stories that weve told and ive appreciated the way youve listened. It is not a stretch to understand why a lot of americans are afraid right now. All we have to do is look at at statements and actions of my republican colleagues and Republican Party platform and the president who follow inated you. And even some of your former words read by my colleagues around the Affordable Care act, President Trump has explicitly stated that the Supreme Court should overturn the Affordable Care act, but he promised that he would nominate a judge who would quote, do the right thing, unlike bushs apointy john roberts on obamacare. President has dried to do this legislative and administratively and failed time and time again but promised to tear down the Affordable Care act. Mean wil meanwhile all of my republican colleagues have voted to over turn the Affordable Care act because house and Senate Republicans have tried to do it 70 times. The one republican who did not was an attorney general who joined 20 state attorney generals who sued to overturn the Affordable Care act. You, yourself, said in and i will quote you that Justice Roberts pushed the Affordable Care act beyond its plausible meaning to save the statute. The same chief Justice Roberts that trump implied didnt do the right thing. So you have said if you were on the court, you will hear and consider the arguments from both sides. I was actually very interested when you said that would you put your family members in the shoes of litigants on both sides. Given all that youve heard over and over again about the intentions to tear away the Affordable Care act and the Affordable Care act, and given what youve heard about people who rely on it, given the commitment that the President Trumps said explicitly to only appoint judges to over turn the a. C. A. , is it unreasonable for people to fear putting yourself in the shoes of people, is it unreasonable for the people that have been up here in their pikes, is it unreasonable for them to fear that the a. C. A. Would would be over turned if you were confirmed to the court. Well, senator, i want to stress to you, senator booker as ive stressed to some of your colleagues today, that i am my own person. I independent under article three and i doan take orders from the executive or the legislative branch. Could i restate my question because i dont think you understand it. Im asking as an act of empathy, could you understand the fears that are exhibited by people we put up. The two people i put up, michelle and merit, i dont know what their Political Party is. I dont know if theyre going to vote for me. Im on the ballot. But i know there are people that wanted their voices to be heard because they are afraid right now. And what your nomination represents. All im asking is can you empathize with that and understand that . Senator, i could certainly empathize with people struggling. I could empathize with people who lack health care. You know, one of the things that was so striking to me when we went to get our daughter vivian from the orphanage in haiti was the lack of basic things like antibody and it made be appreciate the fact that we have access to health care so i could certainly empathize with all of that. With respect to the a. C. A. And should i be confirmed and i would consider recusal in question of law on whether to hear that case. But should i be confirmed and sit and hear the case, as a sured you would i consider all of the arguments oth bone sides and one of the important issues in the case is whether even if the mandate has become unkroougsunkrooug unconstitutional since it was zeroed out will hether it will statutory question or not a constitutional one and whether the mandate to be severed out and the task ever every justice to hears the case will be to look at the structure of the statute and look at text to determine whether it was the will of congress to pass the a. C. A a. C. A. And i apologize that we shouldnt be talking over each other. That is okay. My time is running quickly. Sure. I guess i 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 you heard story after story of people who dont know if theyre going to be able to afford health care and dont know if theyll be denied insurance coverage. And ill move on because of the short time. But you could understand the fear given a president that said they will tear down the fk Affordable Care act thus taking away health care for millions of american, there is fear in our country. They asked about your views on racism in courts and addressing Racial Justice. I was troubled that you said that Racial Justice and equality and ill quote you, were how to tackle the issue of making it better, those things are policy questions. I think that that is the quote. How to tackle the issue or of making it better, the racial injustice. Those things are policy questions. And not for the court. The federal governments own data and this is i think we referenced this in our private conversation which i appreciate. You said that you were familiar with a lot of the data about the discrimination within our criminal Justice System. For example, the u. S. Census commission shows that prosecutors this is the u. S. Census Commission Said that prosecutors are more likely to charge black defendants with offenses that carry harsh mandatory minimum sentences that similarly situated whites. Im not familiar with that particular does that surprise you . I dont know senator booker. That seems an odd thing to express an opinion. Im not asking. These are facts. Im not familiar with that study. As we discussed, i am aware that there is evidence and that there have been studies of systemic racism or implicit bias in the Justice System. Im aware of the issue. Youre aware of evidence that there is implicit bias. Im aware theres have v been studying that bias is present in many context including in the criminal Justice System. Okay. Im going to read other statistics and this is important and this is from the u. S. Census department with similar situated white sentences and enhancements at a significant rate that on average added sentences. Youre not familiar with that study. Im not familiar with that study. Do such cases come before the seventh circuit. The three strikes . Yes. Are you talking about the three strikes, the prison litigation reform act where theyre struck out or talking about im asking cases in the Racial Justice that come before the court. Certainly we have discrimination cases. The 1983 or title 7 cases. And i would imagine so. And in rur research for those cases, you familiarize yourself with the data on the discrimination within the system. We familiarize our aflz is the argument made and in some cases i have had parties submit in the District Court technically and then made part of the rords. So i just want to be clear. Do you believe that there is in fact implicit racial bias in the criminal Justice System. Well it is just a yes or no question. Do you believe there is implicit racial bias in the criminal Justice System. It is hard to imagine a system as big as ours not having any implicit bias in it. So is that a yes . Senator, yes, i think that in our large criminal Justice System it would be inconceivable that there wasnt some implicit bias. Okay. Over the last two years about 121 of President Trumps judicial nominees have said there is implicit racial bias within the Justice System quite clearly. Id like to turn to an opinion you wrote last year about race discrimination. Smith versus Illinois Department of transportation involving an africanamerican traffic Patrol Officer fired from the Illinois Department of transportation and claimed he was subject to hostile Work Environment and that the supervisor called him the n word. But you ruled that the employee had failed to make the case that he had been fired in retaliation for his complaints about race discrimination. And now you acknowledged that, quote, and im im going to quote you now, the n word is an egregious racial epithet but insisted they couldnt win by improving that the n word was uttered at them and that he failed to show that the supervisors use of the n word against him quote altered the conditions of his employment and created a hostile or abusive working environment and you said that even based on his own subjective experience, this black employee had no evidence that his sierupervisors were lashing at him because he was black. Im surprised to make that point at all. But even a staunch conservative like Justice Kavanaugh spoke to the obvious harm that he wrote in a court of appeals case that being called the n word by a supervisor suffices by itself to establish a racially hostile Work Environment. And you disagreed with that. Why do you believe that the law recognized the harm that is afflicted on a black person in this country whether they are called that word by their work supervisor, by anyone really for that matter. And in all of the history drugged up in that word, centuries of harm, why do you believe differently than Justice Kavanaugh . Well, senator booker, that opinion does not take a position position different than kavanaugh. One position would be sufficient to make out a hostile Work Environment claim. In that case, the evidence that the plaintiff had relied on to establish the hostile Work Environment involved other he was driving the wrong way down a ramp and then expletives were used, not the n word, and the n word was used after his termination had already begun. And he didnt argue under clear Supreme Court precedent, i didnt make up the objective subject development under clear Supreme Court precedent both are required and he didnt say that it altered the terms and it is a unanimous Panel Decision. And forgive me if im reading this case wrong. But youre saying weihe was not claiming a hostile Work Environment and it is a fact pattern that the supervisor called him the n word and that does not constitute a hostile Work Environment in the way that Justice Cavanaugh said it was. 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, he was hired to be a safety drier for the Illinois Department of transportation and he based his hostile Work Environment claim on the use of expletives at him based on poor work performance. That was what he relied upon and then his termination proceedings had begun. He didnt tie the use of the n word into the evidence that he introduced for his hostile Work Environment claim. And so as a panel, we were constrained to decide based on the case the plaintiff have presented before us. So the panel very carefully wrote the opinion to make clear that it was possible for one use of the n word to be enough to establish a hostile Work Environment claim if it were pled that way. Im going im going to turn to the case that you went over with judge feinstein. They ruled against stucky and you were not part of that panel but you did vote on whether to hear the case before the entire court. You had an opportunity to affirm the bed rook principle and enshrined in brown versus board of education about separate but equal to say that separate is inherently unequal. But you voted no. You didnt think the full court needed to examine this segregation of employees by race. But the judges on the court disagreed with you. In fact, three judges explained we know that quote deliberate racial segregation has an adverse effect on the people suggest to it. On one of the essential teachings of brown versus board of education, which i know youre familiar with, is that idea of separate being inherently unequal. What 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 . Um, senator, as i said earlier to senator feinstein, i did not make a merits decision that case and i wasnt on the initial panel. The calculation of whether to take a case en banc is different than a merits determination so i wasnt reaching any decision about whether title seven applied to that situation or not. Federal rule of appellate procedure, i think it is 35, that governs sets out standards and this didnt create an intercircuit conflict. So i didnt think it met federal all of my vote means is i didnt feel like it satisfied the elevated High Standard for en banc review, not that i thought it was correct. There is a lot of deference to panels in my court. But three judges disagreed with you and these are judges appointed by republican and democrat president s. They saw the case about separate of equal compelling. They tout the issue deserved closer scrutiny and you had an opportunity to join them but you didnt. He referred to the problem of implicit racial bias in our system, and despite the color of skin, people could get a hearing and get justice and this denial seems to me that you disagree with the prioritization at least of your three colleagues. Senator, eight of my colleagues chose not to take the cas case en banc and the process is a different one that the merits Decision Making process. To decide that case on the merits and know whether it would come out the same way i would have to participate in it and read the briefs and hear the arguments. So the three justices were wrong and you disagree with our colleagues. The three judges who dissented woman i respect very much, thought that it met the standard for en banc review. That is a different question than the merits. So did disagree. So i was within the group of eight that decided that maybe that was an issue to take up in the future but not to disturb the Panel Decision then. There is not a merits determination. Moving quickly. Five years ago the Supreme Court rules that the constitution protects the rights of samesex couples to marry. There is a case discussed today. The court declared that the constitution tute granted lgbtq eck equal rights. On that day the court fulfilled that ideal of equal justice under law and yet now the samesex marriage is legal, wevine efforts to undermine that decision. Weve seen two kinds of marriage, full marriage and skin milk marriage. I firmly believe that our laws shouldnt allow discrimination against people on the basis of would they are. I have a number of questions on this topic. But i want to offer you a further opportunity to address the issue that i dont think you got to fully address that my colleague brought up when you did use the term sexual preference earlier today, rather than Sexual Orientation, is there a difference and what is it . Senator, i really in using that word did not mean to imply that i think that, you know, that it is a not a matter of not an characteristic or solely a matter of preference. Dy not mean any offense or to make any statement by that. By what you just said, you understand about the characteristic. In other words that once a pref they are. Is that what youre saying . Senator, im saying i was not trying to make any comment 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 bas basis. So you say it upholds the decision but what about your two colleagues, excuse me, forgive me, about what aledo and thomas. You said it wasnt a precedent. There are reliant interests. They call it a problem. Do you know what they are referring to . Senator booker, i dont know what justices thomas and aledo were thinking. Were seeing cases where gay and lesbian are being denied access to Social Security access. One same sex couple was together for 43 years and one died six months later and the spouse is denied benefits because they werent married long enough 43 years together in love. Does this violate the rule of equal treatment that the Supreme Court has laid down . Well, can you repeat. They were together 43 years. The law changed and allowed them to married and one died a yearlonger. Th they are being denied benefits. That would be a legal question that would have to come up and be decided in the context of a real case. It. There are precedents. Maybe i can ask a different question. Can a hairdresser refuse to serve an enter rational couples wedding because they disapprove . Loving versus virginia follows directly from brown and makes unconstitutional any attempt to prohibit or forbid enter racial marriage. Could they refuse to refuse to serve a black persons wedding. Title seven prohibits any discrimination on the basis of race, places of public accommodation. How about an interfaith wedding . Senator, i feel like youre taking me down a road of hype cred hy hypotheticals and its a case i cant opine. I cant do that. Im not the lawyer that you are but you seem to honor the precedence there are enough to protect discrimination against african americans, interracial couples and stopping on religious discrimination against a muslim wedding . Senator, what title seven says, as im sure you know, title seven prohibits discrimination on the basis of race, on the basis of sex. I 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 seven, that would be a case that would have to come up, you know, as i discussed with senators litigated so youre asking a series of hypotheticals. Im assuming that you wont respond or for the same reasons you uttered before whether a florist can refuse to serve a same sex march rig. Youre talking about a master piece case shop so i want to make sure im not in a position to listen and use that would bear something thats very active. I guess you may be thinking we go back to the question that both i and senator hirono asked you about. About whether its a choice or not, are they immutable characteristics of an individual, like their race. I just want to just close by saying the story of some folks in my Home Community of new jersey, emily and jan moore. They have been together for 51 years. They have raised three children. At last count and i think thats a good way of putting it, they have 18 grandchildren and 20 great grandchildren, and you know how families are. Uhhuh. For a long time they had to keep their relationship and love a secret. Finally, once samesex marriage became legal, they got married and thanks to the Supreme Courts decision they can enjoy their full rights. Judge barrett, youre asking the United States senate to agree to have you replace Justice Ginsburg that will tilt the balance further of the court to the right. Remember, it was Justice Ginsburg that warned against full marriage for some couples and skim milk for some. Like so many same sex couples, emily and january are worried if the Supreme Court peels back some of their hard fought rights. They believe their love should be valued by their government and equally as a love of any other people and they believe a lot of rights they now enjoy, which were denied in the past to african americans, even, to ent interracial couples, they believe they should honor them. Youve been generous and the chairman allowing me to go over. Im grateful to have the opportunity to talk with you tomorrow. Thank you, senator booker. Thank you, senator booker. Well take a break after this. Thank you, mr. Chairman and were four away from the finish today. Before i begin, i do have a couple of letters id like to submit for the record. One from the speaker of the idaho house scott bedkey in support of judge barretts nomination and the other from the National Shooting sports foundation, also in support of the nomination, mr. Chairman. Without objection. Thank you. Judge barrett, i am going to well, ill get to new material but a lot of what i do at the beginning will be going over things youve said and you must think youve said them way had to say them way too many times. Im going to make sure we get some things nailed down once more. Before i do that, there is a lot said today that really needs to be responded to. This wont be a question to you. These first two im just going to quickly respond to a couple of them. The first was one of my colleagues, senator white house spent a very 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 we should get it out. What this means is money where you dont know who the real donors are behind the entity making the expense. Fortunate fortunately, were getting a lot out but there is still some. The impression left was this dark money is all on one side. The reality is if you look at open secrets. Org this data is from 2016 but ive seen data even later in 2018. And its the same kind of statistics and that is that really, the significanmnificanty is the democratic side rather than republican side. The top 20 individuals that contribute to super pacs that utilize the money talked about, 14 of them give exclusively to democrats. Of the top ten on that list, only two give to republicans. So the totals, by the way, were 422 million in this report going to democrats and 189 million going to republicans. So yeah, there is money in the system, which we cant identify a lot of this money is going into ads against you judge barrett, but we cant get it all out yet. I think we ought to get it out but lets not create the impression this is someonesi some onesided circumstance happening. I want to go over the same thing as yesterday because the allegations have been made again and again and again but 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 vacant seat in an Election Year. Some people count these differently. There is a statistic ill use that will count all vacancies that 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 take the ones that are in the Election Year or if you take all of them that were resolved in the Election Year. The precedent is the same. Its overwhelming. In every single case the sitting president made a nomination. Every case. In those cases in which the senate was in the same party as the president , ill use the one for all of the nominations that were actually 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. Ten of those times, it was when the party was not the party of the president. In nine of those cases, the party that was not the party of the president declined to move forward until
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