Good tuesday morning. Im chuck todd of nbc news. Welcome to msnbcs special coverage of the Supreme Court nomination hearings for judge amy coney barrett. Lindsey graham will gavel in for whats going to be a marathon 11hour day of testimony. The 22 senators on the committee will each get 30 minutes to directly question judge barrett. Theyll do tall today. All but two democratic senators, Kamala Harris and patrick leahy, are expected to appear in the hearing room in person, including thom tillis who was diagnosed with the coronavirus just 11 days ago. Well have an Incredible Team here to cover every angle of this. Garrett haake is inside the hearing room. Senior White House Reporter shannon pettypiece, also joining the conversation, former missouri senator, Claire Mccaskill and melissa murray, law professor at nyu. And a former law clerk to
justice sonia sotomayor. Sit back, and lets watch. You look good. So the game plan for today is to do our first round of 30minute questioning. Each senator will have 30 minutes to interact with judge barrett. Then well follow up with a second round of 20 minutes. Thats what weve been doing in the committee since i have been here. The goal is to get through the first 30minute period today, then come back wednesday and finish up and then well go on about our business. So i will try to ill make sure i stay within 30 minutes for sure. If i can shorten it up, i will. So lets get to it. You can start the clock. So you can relax a bit here, judge, and take your mask off. So yesterday we had a lot of discussion about Affordable Health care act. What im going to try to do very briefly this morning is demonstrate the difference
between politics and judging. All of my colleagues on the other side had very emotional pleas about obamacare, charts of people with preexisting conditions. I want to give you my side of the story about obamacare. This is lindsey graham, the senator from South Carolina talking. This is not a question directed at you. From my point of view, obamacare has been a disaster for the state of South Carolina. All of you over there want to impose obamacare on South Carolina, we dont want it. We want something better. We want something different. You know what we want in South Carolina . South carolina care not obamacare. Why do we want that . Under the Affordable Care act, three states get 35 of the money, folks. Can you name them . Ill help you. California, new york and massachusetts. There are 22 of the population. Senator feinstein is from
california. Nancy pelosi is from california. Chuck schumer, the leader of the Democratic Senate is from new york. And massachusetts is elizabeth warren. Now why do they get 35 of the money when theyre only 22 of the population . Thats the way they designed the law. The more you spend, the more you get. What does it mean for the people of South Carolina . If you had a per patient formula where you got the same amount from the federal government to the state whether you lived in charleston, columbia or San Francisco or new york city, if you leveled that out, it would be almost a billion dollars more for us in South Carolina. So to my friends over there, were going to fight back. We want our money. If youre going to have money allocated for obamacare, were not going to sit back and quietly let you give 35 of it to three states. What else is happening in south
carolina . Four rural hospitals have closed because the Revenue Streams are uncertain. 30 increase in premiums in South Carolina for those on obamacare. I was on obamacare for a few years before i got on tricare. My premiums went up 300 . My coverage was almost nonexistent. A 6,000 deductible. So i want a better deal. And thats a political fight. Im in a campaign at home. If it were up to me, we would block grant this money, send it back to the states in a more fair allocation and we would require preexisting conditions to be covered as part of the block grant. We want sick people covered but ive got an idea. I think South Carolina may be able to deal with diabetes better than and different than california. If you want good outcomes in medicine, you need innovation. The best way to get innovation is to allow people to try
different things to get better outcomes. So the debate on health care is consolidating all the power in washington, have some bureaucrat youll never meet running this program. Versus having it centered in the state where you live. Under my proposal, South Carolina would get almost a billion dollars more. The state of South Carolina would be in charge of administering obamacare. Theyd have to cover preexisting conditions. But if as a patient in South Carolina youd have a voice you dont have today. If you dont like what was happening to you on the health care front you could go to local officials and complain. And the people youre complaining to live in your state. They send their family to the same hospital as you go. Thats a structural difference. Its got nothing to do with this hearing and everything to do with politics. We on this side do not believe
obamacare is the best way to provide Quality Health care over time. Our friends on the other side, this is a place holder for Single Payer Health care. If you dont believe me, just ask them. Thats the fight going into 2020 doesnt make them bad. Just makes them different. It were up to me, bureaucrats would not be administering health care from washington. People from South Carolina would be Running Health care. If it were up to me wed get more money under obamacare than we do today. 33 would not go to three states and sick people would be covered. Thats the political debate. My fate will be left up to the people of South Carolina. So thats what obamacare is all about. Now how do you play in here, judge . Theres a lawsuit involving the Affordable Care act before the Supreme Court. Well talk about that in a bit. And the difference between analyzing a lawsuit and having a
political argument is fundamentally different, and i hope to be able to demonstrate that over the course of the day. And i hope that my colleagues on this side of the aisle will not feel shy about telling my colleagues on the other side of the aisle why we think we have a better idea on health care. Now the bottom line here, judge, you said yesterday something that struck me, and i want the American People to understand what you meant. You said you are an originalist. Is that true . Yes. What does that mean . Press the button. I mean, we all love senator lee, but in english. In english. Okay. So in english, that means that i interpret the constitution as a law. That i interpret its text as text and i understand it to have the meaning that it had at the time people ratified it. So that meaning doesnt change over time and its not up to me to update it or infuse my own
policy views into it. So in other words, youre bound by the people who wrote it at the time they wrote it. That keeps you from substituting your judgment for theirs, is that correct . Yes. Justice scalia was an originalist, right . Yes, he was. People say youre a female scalia. What would you say . I would say that Justice Scalia was obviously a mentor. And as i said, when i accepted the president s nomination, that his philosophy is mine, too. You know, he was a very eloquent defender of originalism and that was also true of textualism which is the way that i approach statutes and their interpretations. And similarly to what i just said about originalism for texturalism, the judge approaches the text as it was written with the meaning it had at the time and doesnt infuse their own meaning into it. But i want to be careful to say that if i am confirmed, you would not be getting Justice Scalia. You would be getting justice
barrett. And thats so because originalists dont always agree, and neither do sectionalists. My friend teaches a class called scalia versus thomas. Its not a mechanical exercise. Ill wait until the movie comes out. So the bottom line for me is theres a narrative building in this country, and again, you can stand down. This is just me speaking for me. Justice ginsburg was an iconic figure in mirn hiamerican histot not the law. She fought for better conditions for women throughout society. She was unashamedly progressive in her personal thoughts. She was devout to her faith. She worked for the aclu. She was proudly prochoice personally, but all of us on this side apparently when they voted, accepted that she was highly qualified. What i want the American People to know, i think its okay to be
religiously conservative. I think its okay to be personally prochoice, i think its okay to live your life in a traditional catholic fashion. And you would still be qualified to the Supreme Court. So all the young conservative women out there, this hearing to me is about a place for you. I hope when this is all over that you there will be a place for you at the table. There will be a spot for you at the Supreme Court like there was for judge ginsburg. And to President Trump, i dont know if youre listening or not, by picking judge barrett, you have publicly said you find value in all of these characteristics, but beyond anything else, you find judge barrett to be highly qualified. I would say youre one of the greatest picks President Trump could have made. And from the conservative side of the aisle, you are one of the most qualified people of your generation. Lets talk about brown versus board of education because i
know senator blumenthal will. Im going to talk about. That you said in writings it was a superprecedent. What did you mean . In my writings i talked about stare decisive. Its not a term that comes from the Supreme Court, and i think maybe in political conversation or in newspapers people use it in different ways. I was using a framework articulated by other scholars and in that context, superprecedent means precedent so well established that it would be unthinkable it would ever be overruled. There are about six cases on this list that other scholars have identified. Lets talk about brown and talk about why it would be unthinkable. First, lets talk about, whats the process that would lead to it being overruled . What would have to happen . For brown to be overruled, you would have to have congress or some state or local
government impose segregation again. If you want to make yourself famous by the end of the day, you can say we want to go back to segregation. I imagine youll be on every cable tv channel in america. I doubt if youll go very far. But the point were trying to make here is the court just cant wake up and say lets revisit brown. It has to be a case in controversy, is that right . Yes, thats right. So before a brown decision could you could review brown, somebody out there would have to be dumb enough to pass a law saying, lets go back to segregated schools. Is that fair to say . That is fair to say. Do you see that happening any time soon . I do not see that happening any time soon. I dont either. So lets talk about the process in general. Theres the heller case. Whats that about . The heller case is a case decided by the Supreme Court which held the Second Amendment protects an individual right to bear arms. Okay. Now my friends on the left, some of them have a problem with
heller. They may try to challenge the construct of heller. If a state or local government passed a law in defiance of heller, what would happen . In defiance of that was challenging the construct of heller. That challenged the construct of heller, if it was a lower if it was brought in a lower court, heller binds. Lower courts always have to follow a Supreme Court precedent. If the Supreme Court wanted to revisit heller, what would they do . If someone challenged heller below, because a state or local government passed a law contradicting heller, the Supreme Court would have to take that case once it was appealed all the way up so the court would have to decide, yes, we want to overrule heller and we have enough votes to grant cert and do so. Thats the way the process works . It would start, because there was a law, a lawsuit, an appeal, and the Court Granted cert and the court decided the case. Is that true no matter what the issue. Whether its gun, abortion,
health care, campaign finance, does that process hold true for everything . Yes. You always judges cant just wake up one day and say, i have an agenda. I like guns. I hate guns, i like abortion. I hate abortion and walk in like a royal queen and impose their will on the world. You have to wait for cases and controversies which is the language of the constitution to wind their way through the process. All right. Well, senator, thats a good physics lesson. So if a state says i dont think you should have over six bullets and somebody believed that violated the Second Amendment, there would be a lawsuit and the same process would work, right . The same process would work. And in that case, there would be parties would have to sue the state arguing that that law was unconstitutional. It would wind its way up, and if it got to the Supreme Court and if the Supreme Court decided to take it, a full decisionmaking
process begins. You hear arguments from litigants on both sides. They write briefs. You talk to cleerks as a judge. You talk to your colleagues. You write an opinion. Opinions circulate and you get feedback from your colleagues. So its an entire process. Its not something that a judge or justice would wake up and say, ah, were hearing this case. I know what my vote is going to be. Lets talk about the two Supreme Court cases regarding abortion. What are the two leading cases in america regarding abortion . I think most people think of roe vs. Wade and caseys is the case after roe that preserved roes Central Holding but grounded it in a slightly different rationale. What is that rationale . Rationale is that the state cannot impose an undue burden on a womans right to terminate a pregnancy. Unlike brown, there are states challenging on the abortion front. There are states that are going
to a feetal heartbeat bill. I have a bill, judge, that would disallow abortion on demand at the 20 weeks, the fifth month of the pregnancy. Were one of seven nations in the entire world that allow abortion on demand at the fifth month. The construct of my bill is because the child is capable of feeling pain in the fifth month, doctors tell us to save the childs life you have to provide anesthesia if you operate because they can feel pain. The argument im making if you have to provide anesthesia to save the childs life because they can feel pain, must be a terrible death to be dismembered by an abortion. Thats a theory to protect the unborn at the fifth month. If that litigation comes before you, will you listen to both sides . Of course. Ill do that in every case. So i think 14 states have already passed a version of what ive just described. So there really is a debate in
america still like brown versus board of education about the rights of the unborn. Thats just one example. So if theres a challenge coming from a state, if a state passes a law and it goes into court where people say this violates kascase casey, how do you decide that . It would begin in a trial court. A trial court would make a record. The parties would litigate and develop that record in a trial court. Then up to a court of appeals that would review that record looking for very. And then again, it would be the same process. The Supreme Court would have to grant it and at that point it would be the full judicial process. Would be briefs, oral arguments, conversations with law clerks in chambers, consultations with colleagues, writing an opinion, really digging down into it. Its not just a vote. You all do that. You have a policy and cast a
vote. The judicial process is different. When it comes to your personal views about this topic, do you own a gun . We do own a gun. Okay. All right. Do you think you could fairly decide a case even though you own a gun . Yes. All right. Youre catholic. I am. I think weve established that. The tenets of your faith mean a lot to you personally. Is that correct . That is true. Youve chosen to raise your family in the catholic faith. Thats true. Can you set aside whatever catholic beliefs you have regard anything issue before you . I can. I have done that in my time on the 7th circuit. If i stay on the 7th circuit ill continue to do that. If im confirmed to the Supreme Court, i will do that still. I would dare say there are personal views on the Supreme Court, and nobody questions whether our liberal friends can
set aside their beliefs. Theres no question no reason to question yours, in my view. So the bottom line here is that theres a process. You fill in the blanks, whether its about guns in heller, abortion rights. Lets go to Citizens United. To my good friend senator whitehouse. Me and you are going to come closer and closer about regulating money because i dont know whats going on ou