[Senate Hearing 116-637]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 116-637

                      CONFIRMATION HEARING ON THE
                  NOMINATION OF HON. AMY CONEY BARRETT
                   TO BE AN ASSOCIATE JUSTICE OF THE
                   SUPREME COURT OF THE UNITED STATES

=======================================================================

                                HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                     ONE HUNDRED SIXTEENTH CONGRESS

                             SECOND SESSION

                               ----------                              

                    OCTOBER 12, 13, 14, and 15, 2020

                               ----------                              

                          Serial No. J-116-65

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         Printed for the use of the Committee on the Judiciary
         
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT] 

                               __________

                   U.S. GOVERNMENT PUBLISHING OFFICE                    
53-974 PDF                  WASHINGTON : 2024                    
          
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                       COMMITTEE ON THE JUDICIARY

              LINDSEY O. GRAHAM, South Carolina, Chairman
CHARLES E. GRASSLEY, Iowa            DIANNE FEINSTEIN, California,     
JOHN CORNYN, Texas                       Ranking Member
MICHAEL S. LEE, Utah                 PATRICK J. LEAHY, Vermont
TED CRUZ, Texas                      RICHARD J. DURBIN, Illinois
BEN SASSE, Nebraska                  SHELDON WHITEHOUSE, Rhode Island
JOSH HAWLEY, Missouri                AMY KLOBUCHAR, Minnesota
THOM TILLIS, North Carolina          CHRISTOPHER A. COONS, Delaware
JONI ERNST, Iowa                     RICHARD BLUMENTHAL, Connecticut
MIKE CRAPO, Idaho                    MAZIE K. HIRONO, Hawaii
JOHN KENNEDY, Louisiana              CORY A. BOOKER, New Jersey
MARSHA BLACKBURN, Tennessee          KAMALA D. HARRIS, California
              Lee Holmes, Chief Counsel and Staff Director
           Phillip A. Brest, Acting Democratic Staff Director
                           
                           C O N T E N T S

                              ----------                              

   OCTOBER 12, 9:02 A.M.; OCTOBER 13, 9 A.M.; OCTOBER 14, 9:01 A.M.;
                    AND OCTOBER 15, 2020, 11:11 A.M.

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Graham, Hon. Lindsey O., a U.S. Senator from the State of South 
  Carolina
    October 12, 2020, opening statement..........................     1
    October 13, 2020, opening statement..........................    75
    October 14, 2020, opening statement..........................   247
    October 15, 2020, opening statement..........................   379
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California:
    October 12, 2020, opening statement..........................     4
    October 15, 2020, opening statement..........................   384
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa.
    October 12, 2020, opening statement..........................     7
    October 15, 2020, opening statement..........................   379
    prepared statement...........................................   588
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     9
Cornyn, Hon. John, a U.S. Senator from the State of Texas........    12
Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................    14
Lee, Hon. Michael S., a U.S. Senator from the State of Utah......    17
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode 
  Island.........................................................    20
Cruz, Hon. Ted, a U.S. Senator from the State of Texas...........    23
Klobuchar, Hon. Amy, a U.S. Senator from the State of Minnesota..    26
Sasse, Hon. Ben, a U.S. Senator from the State of Nebraska.......    29
Coons, Hon. Christopher A., a U.S. Senator from the State of 
  Delaware.......................................................    33
Hawley, Hon. Josh, a U.S. Senator from the State of Missouri.....    36
Blumenthal, Hon. Richard, a U.S. Senator from the State of 
  Connecticut....................................................    39
Tillis, Hon. Thom, a U.S. Senator from the State of North 
  Carolina.......................................................    42
Hirono, Hon. Mazie K., a U.S. Senator from the State of Hawaii...    44
Ernst, Hon. Joni, a U.S. Senator from the State of Iowa..........    47
Booker, Hon. Cory A., a U.S. Senator from the State of New Jersey    49
Crapo, Hon. Mike, a U.S. Senator from the State of Idaho.........    53
Harris, Hon. Kamala D., a U.S. Senator from the State of 
  California.....................................................    56
Kennedy, Hon. John, a U.S. Senator from the State of Louisiana...    58
Blackburn, Hon. Marsha, a U.S. Senator from the State of 
  Tennessee......................................................    61

                              INTRODUCERS

Young, Hon. Todd, a U.S. Senator from the State of Indiana, 
  introducing Hon. Amy Coney Barrett, Nominee to be an Associate 
  Justice of the Supreme Court of the United States..............    64
    prepared statement...........................................   591
Braun, Hon. Michael, a U.S. Senator from the State of Indiana, 
  introducing Hon. Amy Coney Barrett, Nominee to be an Associate 
  Justice of the Supreme Court of the United States..............    66
O'Hara, Patricia A., professor emerita of law, Notre Dame Law 
  School, Notre Dame, Indiana, introducing Hon. Amy Coney 
  Barrett, Nominee to be an Associate Justice of the Supreme 
  Court of the United States.....................................    71
    prepared statement...........................................   593

                       STATEMENTS OF THE NOMINEE

Witness List.....................................................   424
Barrett, Hon. Amy Coney, Nominee to serve as an Associate Justice 
  of the Supreme Court of the United States:
    October 12, 2020, statement..................................    68
    October 12, 2020, prepared statement.........................   426
    questionnaire and biographical information...................   430
    attachment: financial disclosure report......................   495
    attachment: questionnaire supplement I.......................   506
    attachment: questionnaire supplement II......................   517
    attachment: appendix 11(c)...................................   519
    attachment: appendix 13(b)...................................   526
    attachment: appendix 13(c)...................................   546
    attachment: appendix 13(f)...................................   581
    attachment: appendix 14......................................   586

                      STATEMENTS OF THE WITNESSES

Bhatti, Farhan, M.D., chief executive officer and medical 
  director, Care Free Medical, Lansing, Michigan.................   387
    prepared statement...........................................   595
Clarke, Kristen, president and executive director, Lawyers' 
  Committee for Civil Rights Under Law, Washington, DC...........   391
    prepared statement and report................................   600
Good, Crystal, Charleston, West Virginia.........................   394
    prepared statement...........................................   630
Griffith, Hon. Thomas, Judge, retired, U.S. Court of Appeals for 
  the District of Columbia Circuit, Washington, DC...............   389
    prepared statement and report................................   633
Noel, Randall D., Butler Snow LLP, Memphis, Tennessee............   380
    prepared statement...........................................   640
Prakash, Saikrishna, James Monroe Distinguished Professor of Law, 
  University of Virginia School of Law, Charlottesville, Virginia   392
    prepared statement...........................................   657
Rauh-Bieri, Amanda, associate, Miller Canfield, Grand Rapids, 
  Michigan.......................................................   398
    prepared statement...........................................   663
Roberts, Pamela J., Bowman and Brooke LLP, Columbia, South 
  Carolina.......................................................   382
Staggs, Stacy, Little Lobbyists, Charlotte, North Carolina.......   396
    prepared statement...........................................   665
Wolk, Laura, Washington, DC......................................   400
    prepared statement...........................................   667

                               QUESTIONS

Questions submitted to Hon. Amy Coney Barrett by:

    Ranking Member Feinstein.....................................   670
    Senator Cornyn...............................................   682
    Senator Blackburn............................................   683
    Senator Leahy................................................   684
    Senator Durbin...............................................   694
    Senator Whitehouse...........................................   701
    Senator Klobuchar............................................   722
    Senator Coons................................................   727
    Senator Blumenthal...........................................   738
    Senator Hirono...............................................   758
    Senator Booker...............................................   768

                                ANSWERS

Responses of Hon. Amy Coney Barrett to questions submitted by:

    Ranking Member Feinstein.....................................   781
    Senator Cornyn...............................................   801
    Senator Blackburn............................................   803
    Senator Leahy................................................   805
    Senator Durbin...............................................   822
    Senator Whitehouse...........................................   831
    Senator Klobuchar............................................   864
    Senator Coons................................................   873
    Senator Blumenthal...........................................   895
    Senator Hirono...............................................   928
    Senator Booker...............................................   944

   LETTERS RECEIVED WITH REGARD TO THE NOMINATION OF HON. AMY CONEY 
 BARRETT TO BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED 
                                 STATES

    A Better Balance, et al., organizations that support rights 
      of working families, October 9, 2020.......................   965
    Adhikaar, et al., 50 organizations, October 8, 2020..........   973
    Advocates for Youth, et al., 83 organizations committed to 
      social justice, October 12, 2020...........................   977
    AFL-CIO, October 22, 2020....................................   984
    Agudath Israel of America, October 20, 2020..................   986
    Alaska Wilderness League, et al., environmental groups, 
      October 15, 2020...........................................   987
    ALEC Action and American Legislative Exchange Council (ALEC), 
      October 9, 2020............................................   990
    Alexandre, Jonathan, Esq., Liberty Counsel, October 14, 2020.   991
    Alford, Roger, Notre Dame Law School, October 9, 2020........   992
    American Association for Justice (AAJ), October 21, 2020.....   995
    American Association of People with Disabilities, et al., 
      October 5, 2020............................................   997
    American Association of University Women (AAUW), October 8, 
      2020.......................................................  1002
    American Center for Law & Justice (ACLJ), October 9, 2020....  1006
    American Federation of State, County and Municipal Employees 
      (AFSCME), October 19, 2020.................................  1008
    American Federation of Teachers (AFT), October 13, 2020......  1010
    Americans for Prosperity (AFP), October 12, 2020.............  1013
    And Then There Were None, October 12, 2020...................  1015
    Anti-Defamation League (ADL), October 9, 2020................  1017
    Article III Project (A3P), October 9, 2020...................  1031
    Association of Flight Attendants-CWA, AFL-CIO, October 13, 
      2020.......................................................  1033
    Bachiochi, Erika, J.D., et al., Christian women scholars, 
      October 9, 2020............................................  1037
    Battle Born Progress, et al., organizations working to 
      strengthen public safety laws, October 8, 2020.............  1039
    Bedke, Hon. Scott, Idaho Speaker of the House, Idaho House of 
      Representatives, October 12, 2020..........................  1042
    Black Lives Matter Global Network Foundation, October 21, 
      2020.......................................................  1043
    Brookins, Mariel, former law clerk to Judge Amy Coney 
      Barrett, Octo-ber 8, 2020..................................  1045
    Buccellato, Aimee Catrow, Barrett family friend, October 9, 
      2020.......................................................  1047
    California Women Lawyers (CWL), letter and National 
      Association of Women Lawyers (NAWL) attachment, pages 1, 3, 
      and 5; October 12, 2020....................................  1049
    Carozza, Paolo G., University of Notre Dame, October 9, 2020.  1053
    Chemerinsky, Erwin, University of California, Berkeley School 
      of Law, October 10, 2020...................................  1055
    Club for Growth, October 8, 2020.............................  1057
    Coalition on Human Needs, October 12, 2020...................  1059
    Committee for Justice (CFJ), October 13, 2020................  1066
    Concerned Women for America Legislative Action 
      Committee(CWALAC), October 8, 2020.........................  1068
    Congressional Black Caucus (CBC) and CBC Judicial Nominations 
      Task Force, Members of the U.S. House of Representatives 
      and the U.S. Senate, October 19, 2020......................  1070
    Constitutional Accountability Center (CAC), October 9, 2020..  1073
    Constitutional Accountability Center (CAC), October 21, 2020.  1077
    Cox, Alyson M., and Ongeri, Keith, former students of Judge 
      Amy Coney Barrett, Notre Dame Law School, October 12, 2020.  1087
    Current legislators, in partnership with ALEC Action, October 
      10, 2020...................................................  1089
    Current Pennsylvania legislators, October 14, 2020...........  1092
    Current Republican governors, October 8, 2020................  1098
    Current secretaries of State, October 2, 2020................  1101
    Current State and local elected officials, from 47 States and 
      Washington, DC, October 15, 2020...........................  1103
    Current State attorneys general, September 30, 2020..........  1123
    Current State legislators, October 12, 2020..................  1127
    Cushman, Barry, Notre Dame Law School, October 9, 2020.......  1131
    DeJulius, Leon F., Jr., Jones Day, October 14, 2020..........  1133
    Democratic Women's Caucus of the U.S. House of 
      Representatives, October 2, 2020...........................  1135
    Earthjustice, October 12, 2020...............................  1139
    End Citizens United/Let America Vote Action Fund et al., 
      October 16, 2020...........................................  1144
    Family Research Council (FRC), October 8, 2020...............  1147
    First Liberty, October 7, 2020...............................  1148
    Former classmates and alumnae of St. Mary's Dominican High 
      School, New Orleans, Louisiana, October 13, 2020...........  1149
    Former classmates, Class of 1994, and alumni of Rhodes 
      College, September 27, 2020................................  1167
    Former classmates, Class of 1994, and alumni of Rhodes 
      College, Octo-ber 15, 2020.................................  1186
    Former classmates, Class of 1997, Notre Dame Law School, 
      October 14, 2020...........................................  1203
    Former law clerks to Judge Amy Coney Barrett, October 9, 2020  1207
    Former students of Judge Amy Coney Barrett and alumni of 
      Notre Dame Law School, October 14, 2020....................  1209
    Former students of St. Mary's Dominican High School, New 
      Orleans, Louisiana, October 15, 2020.......................  1232
    Gardner, Brent W., et al., conservative leaders, October 8, 
      2020.......................................................  1234
    Garnett, Nicole Stelle, Notre Dame Law School, October 13, 
      2020.......................................................  1241
    Giffords, October 22, 2020...................................  1244
    Goldsmith, Jack, Harvard Law School, October 11, 2020........  1246
    Graham, Franklin, Samaritan's Purse, Billy Graham 
      Evangelistic Association, October 7, 2020..................  1248
    Guelzo, Allen C., Ph.D., Princeton University, October 8, 
      2020.......................................................  1249
    Hargett, Hon. Tre, Tennessee Secretary of State, September 
      30, 2020...................................................  1251
    Heritage Action for America, Washington, DC, October 8, 2020.  1253
    Heritage Action for America, Alabama, October 12, 2020.......  1254
    Heritage Action for America, Alaska, October 12, 2020........  1255
    Heritage Action for America, Arizona, October 12, 2020.......  1256
    Heritage Action for America, Arkansas, October 12, 2020......  1257
    Heritage Action for America, California, October 12, 2020....  1258
    Heritage Action for America, Colorado, October 12, 2020......  1259
    Heritage Action for America, Colorado, second letter, October 
      12, 2020...................................................  1260
    Heritage Action for America, Delaware, October 12, 2020......  1262
    Heritage Action for America, Florida, October 12, 2020.......  1263
    Heritage Action for America, Georgia, October 12, 2020.......  1264
    Heritage Action for America, Hawaii, October 12, 2020........  1265
    Heritage Action for America, Idaho, October 12, 2020.........  1266
    Heritage Action for America, Indiana, October 12, 2020.......  1267
    Heritage Action for America, Iowa, October 12, 2020..........  1268
    Heritage Action for America, Kansas, October 12, 2020........  1269
    Heritage Action for America, Kentucky, October 12, 2020......  1270
    Heritage Action for America, Maine, October 12, 2020.........  1271
    Heritage Action for America, Maryland, October 12, 2020......  1272
    Heritage Action for America, Michigan, October 12, 2020......  1273
    Heritage Action for America, Minnesota, October 12, 2020.....  1274
    Heritage Action for America, Mississippi, October 12, 2020...  1275
    Heritage Action for America, Montana, October 12, 2020.......  1276
    Heritage Action for America, Nebraska, October 12, 2020......  1277
    Heritage Action for America, New Mexico, October 12, 2020....  1278
    Heritage Action for America, North Carolina, October 12, 2020  1279
    Heritage Action for America, Ohio, October 12, 2020..........  1280
    Heritage Action for America, Oklahoma, October 12, 2020......  1281
    Heritage Action for America, Oregon, October 12, 2020........  1282
    Heritage Action for America, Pennsylvania, October 12, 2020..  1283
    Heritage Action for America, South Carolina, October 12, 2020  1284
    Heritage Action for America, Tennessee, October 12, 2020.....  1285
    Heritage Action for America, Texas, October 12, 2020.........  1286
    Heritage Action for America, Utah, October 12, 2020..........  1287
    Heritage Action for America, Virginia, October 12, 2020......  1288
    Heritage Action for America, Washington, October 12, 2020....  1289
    Heritage Action for America, West Virginia, October 12, 2020.  1290
    Heritage Action for America, Wisconsin, October 12, 2020.....  1291
    Heritage Action for America, Wyoming, October 12, 2020.......  1292
    Human Rights Campaign, October 9, 2020.......................  1293
    Independent Women's Voice, October 8, 2020...................  1297
    International Union of Bricklayers and Allied Craftworkers 
      (BAC), October 23, 2020....................................  1298
    Jackson Lee, Hon. Sheila, a Representative in Congress from 
      the State of Texas, October 14, 2020.......................  1300
    Japanese American Citizens League (JACL), October 9, 2020....  1309
    Jenuwine, Michael, J.D., Ph.D., Notre Dame Law School, 
      September 30, 2020.........................................  1312
    Lambda Legal, October 9, 2020................................  1314
    LatinoJustice PRLDEF, et al., October 21, 2020...............  1326
    Law enforcement leaders from across the United States, 
      October 22, 2020...........................................  1329
    Law professors with expertise in health law, disability law, 
      constitutional law, and the Supreme Court, October 12, 2020  1336
    Lawyers Committee for Civil Rights Under Law, Board of 
      Directors, October 12, 2020................................  1345
    Lawyers for Good Government and Alliance for Justice, October 
      23, 2020, pp. 4-265 available online; see Additional 
      Submission for the Record..................................  1350
    Lawyers, law students, and legal leaders, October 12, 2020...  1353
    Leadership Conference on Civil and Human Rights, The, et al., 
      October 5, 2020............................................  1365
    Liberty Counsel Action, October 12, 2020.....................  1381
    Lovitt, Traci L., Jones Day, October 11, 2020................  1382
    MALDEF, October 26, 2020.....................................  1384
    Miller, Paul B., Notre Dame Law School, September 30, 2020...  1386
    NAACP, October 9, 2020.......................................  1387
    NAACP, October 22, 2020......................................  1402
    Nader, Ralph, Lou Fisher, and Bruce Fein, letter and 
      constitutional questions for Judge Amy Coney Barrett, 
      October 12, 2020...........................................  1407
    Nagle, Lisa, Barrett family friend, October 13, 2020.........  1412
    NARAL Pro-Choice America, et al., 136 organizations in 
      support of reproductive health, rights, and justice, 
      October 9, 2020............................................  1415
    National Asian Pacific American Women's Forum (NAPAWF), et 
      al., 56 reproductive justice groups, October 9, 2020.......  1421
    National Bar Association, letter and resolution, October 26, 
      2020.......................................................  1430
    National Bar Association Young Lawyers Division and 
      Washington Bar Association Young Lawyers Division, October 
      26, 2020...................................................  1434
    National Council of Jewish Women, et al., September 25, 2020.  1436
    National Education Association, October 8, 2020..............  1439
    National Education Association, October 19, 2020.............  1442
    National Education Association and 52 affiliates, October 14, 
      2020.......................................................  1445
    National Employment Lawyers Association (NELA), October 15, 
      2020.......................................................  1448
    National Nurses United (NNU), October 21, 2020...............  1452
    National Sheriffs' Association, October 8, 2020..............  1456
    National Shooting Sports Foundation (NSSF), September 29, 
      2020.......................................................  1457
    National Women's Law Center, October 11, 2020................  1458
    O'Hara, Patricia A., Notre Dame Law School, October 5, 2020..  1461
    Patel, Devan N., former student of Judge Amy Coney Barrett, 
      Notre Dame Law School, October 8, 2020.....................  1464
    People For the American Way, October 11, 2020................  1466
    Pro-Choice Caucus of the U.S. House of Representatives, 
      October 8, 2020............................................  1470
    Pro-Life Court, pro-life and pro-family organizations, 
      October 12, 2020...........................................  1479
    Religious Action Center of Reform Judaism, October 8, 2020...  1483
    Republican Lieutenant Governors Association (RLGA), October 
      5, 2020....................................................  1486
    Republican National Lawyers Association (RNLA), October 14, 
      2020.......................................................  1489
    Rutledge, Peter B. ``Bo,'' University of Georgia School of 
      Law, October 9, 2020.......................................  1491
    Service Employees International Union (SEIU), October 9, 2020  1492
    Snead, O. Carter, University of Notre Dame, October 8, 2020..  1496
    Thurston, Hon. John, Arkansas Secretary of State, September 
      30, 2020...................................................  1497
    Tor, Avishalom, Notre Dame Law School, October 12, 2020......  1498
    UAW, October 23, 2020........................................  1501
    United We Dream Network, et al., 131 organizations, September 
      25, 2020...................................................  1503
    United Steelworkers (USW), October 22, 2020..................  1508
    Wasden, Hon. Lawrence G., Idaho Attorney General, October 20, 
      2020.......................................................  1510
    Witty, Peter N., October 8, 2020.............................  1512
    Women for America First, October 12, 2020....................  1514
    Women of faith who practice the law, October 11, 2020........  1515

                MISCELLANEOUS SUBMISSIONS FOR THE RECORD

    American Legislative Exchange Council (ALEC), statement......  1517
    Bennett, Hon. Mark W., former judge, U.S. District Court, 
      Northern District of Iowa, et al., September 22, 2020, 
      letter.....................................................  1518
    Blanton, J. Brett, Architect of the Capitol, guidelines for 
      COVID-19 safety protocols, October 9, 2020, letter.........  1520
    Blumenthal, Sidney, and Harold Holzer, ``Lincoln and that 
      Supreme Court Vacancy: A Deference to Democracy,'' 
      justsecurity.org, October 11, 2020, article................  1521
    Center for Reproductive Rights, report.......................  1523
    Family Equality, 15 statements from across the United States.  1545
    Garvey, John, ``I taught and worked with Amy Coney Barrett. 
      Here's what people get wrong about her faith,'' The 
      Washington Post, September 25, 2020, opinion...............  1579
    Giffords Law Center to Prevent Gun Violence, September 22, 
      2020, memorandum...........................................  1581
    GLAD, et al., organizations that support LGBTQ people and 
      people living with HIV, September 28, 2020, letter.........  1586
    Human Rights Campaign, statement.............................  1589
    League of Women Voters, September 25, 2020, letter...........  1601
    Leahy, Senator Patrick J., Senator Cory A. Booker, and 
      Senator Kamala D. Harris; letter to Chairman Lindsey O. 
      Graham, October 9, 2020....................................  1603
    Leonard, Christopher, ``Charles Koch's Big Bet on Barrett,'' 
      The New York Times, October 12, 2020, opinion..............  1605
    Muller, Derek T., ``Teacher, mentor, colleague: Judge Barrett 
      will be an outstanding justice,'' The Gazette, October 6, 
      2020, opinion..............................................  1607
    NAACP Legal Defense and Educational Fund (LDF), report.......  1609
    Nader, Ralph, October 12, 2020, memorandum and attachment....  1637
    NARAL Pro-Choice America, statement..........................  1645
    Planned Parenthood Federation of America and Planned 
      Parenthood Action Fund, statement..........................  1652
    Whitehouse, Senator Sheldon, ``Dark Money and U.S. Courts: 
      The Problem and Solutions,'' Harvard Journal on 
      Legislation, vol. 57, no. 2, 2020, pp. 273-301, policy 
      essay......................................................  1657

                  ADDITIONAL SUBMISSION FOR THE RECORD

Submission for the record not printed due to voluminous nature, 
  previous publication, or other criteria determined by the 
  Committee:

  Lawyers for Good Government and Alliance for Justice, letter

  https://www.judiciary.senate.gov/imo/media/doc/
  Alliance%20for%20
  Justice%20Letter%20(10-23-20).pdf
 
                      CONFIRMATION HEARING ON THE
                  NOMINATION OF HON. AMY CONEY BARRETT
                   TO BE AN ASSOCIATE JUSTICE OF THE
                   SUPREME COURT OF THE UNITED STATES

                              ----------                              


                        MONDAY, OCTOBER 12, 2020

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:02 a.m., in 
Room 216, Hart Senate Office Building, Hon. Lindsey O. Graham, 
Chairman of the Committee, presiding.
    Present: Senators Graham [presiding], Grassley, Cornyn, 
Lee, Cruz, Sasse, Hawley, Tillis, Ernst, Crapo, Kennedy, 
Blackburn, Feinstein, Leahy, Durbin, Whitehouse, Klobuchar, 
Coons, Blumenthal, Hirono, Booker, and Harris.

          OPENING STATEMENT OF HON. LINDSEY O. GRAHAM,
        A U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA

    Chairman Graham. Good morning, everybody. Judge Barrett's 
family, welcome.
    The hearing to confirm Judge Amy Barrett to the Supreme 
Court will now begin. I appreciate everyone's cooperation, and 
we will have a hearing, hopefully, that the country will learn 
more about Judge Barrett, learn more about the law, learn about 
the differences in judging, and maybe the differences in the 
party. If that happens, it will be a successful hearing.
    As to the hearing room, I doubt if there is any room in the 
country that has been given more attention and detail to make 
sure it is CDC-compliant. The Architect of the Capitol, working 
with the Attending Physician, has set up the room in a fashion 
that we can safely do our business.
    Senator Lee is back. You have been cleared by your 
physician. Welcome back.
    The COVID problem in America is real. It is serious, it is 
dangerous, and we have to mitigate the risk. I would just let 
every American know that many of you are going to work today, 
probably already been at work, and I hope your employer will 
take care of your healthcare needs. But we do have a country 
that needs to move forward safely, and there are millions of 
Americans--cops, waitresses, nurses, you name it--going to work 
today to do their job, and we are going to work in the Senate 
to do our job. And one of the most important jobs the Senate 
Judiciary Committee will ever do is have hearings and confirm a 
Justice to the Supreme Court.
    So, for housekeeping purposes, the first day has 
traditionally been opening statements by my colleagues. We will 
do 10-minute rounds, and everybody will have 10 minutes to talk 
about their views of the hearing and what this is all about. 
Then we will have a panel to introduce Judge Barrett, and she 
will make an opening statement. We will try to finish mid-
afternoon, if that is possible.
    Then Tuesday and Wednesday will be long days. There will be 
30-minute rounds for every Senator, followed by a 20-minute 
round. My goal is to complete that Wednesday at some kind of 
reasonable hour in the evening.
    Thursday, we will begin the markup. I intend to hold it 
over and bring the Committee back on the 22nd to vote on the 
nomination.
    So, if I may, I will start off with an opening statement 
and say why we are here. Number one, Justice Ruth Bader 
Ginsburg died on September the 18th. What can you say about 
Justice Ginsburg? She was confirmed 96-to-3.
    Now, those were days that have since passed--I regret 
that--96-to-3. Now this was a person who worked for the ACLU, 
someone who was known in progressive circles as an icon. 
Apparently, just about every Republican voted for her. Her good 
friend on the Court, Justice Scalia, I think got 97 votes.
    I do not know what happened between then and now. I guess 
we can all take some blame. But I just want to remind everybody 
there was a time in this country when someone like Ruth Bader 
Ginsburg was seen by almost everybody as qualified for the 
position of being on the Supreme Court, understanding that she 
would have a different philosophy than many of the Republicans 
that voted for her.
    Twenty-seven years on the Court. Before becoming a member 
of the Court, she was an active litigator, pushing for more 
equal justice and better rights for women throughout the 
country.
  Her close friend until his death, Justice Scalia called her ``the 
 leading and very successful litigator on behalf of 
women's rights, the Thurgood Marshall of that cause.'' What 
high praise. I cannot say any more than that statement says.
    In my view, the person appearing before this Committee is 
in a category of excellence, something the country should be 
proud of, and she will have a chance to make her case to be a 
worthy successor and to become the ninth member of the Supreme 
Court of the United States.
    On September the 26th, Judge Amy Barrett was nominated by 
President Trump to the Supreme Court. Who is she? She is a 
judge sitting on the Seventh Judicial Circuit. She is highly 
respected. She was a professor at Notre Dame. Three years 
during that tenure, she was chosen by the students to being the 
best professor, which I am sure is no easy task at any college. 
She is widely admired for her integrity.
    She grew up in New Orleans, graduated from Rhodes College 
in Memphis, Tennessee, in 1994, graduated summa cum laude and 
first in her class from Notre Dame Law School in 1997. So, 
academically, she is very gifted.
    She clerked for Judge Laurence Silberman on the U.S. Court 
of Appeals for the D.C. Circuit and then for Justice Scalia on 
the Supreme Court. She practiced law in Washington, DC. She 
joined the faculty at Notre Dame in 2002. She has published 
numerous articles in prestigious journals, including the 
Columbia, University of Virginia, and Cornell Law Review.
    She has been a circuit court judge at the Seventh Circuit 
since 2017. She was confirmed to that position with a 
bipartisan vote. She has heard hundreds of cases in that 
capacity.
    She said, ``I clerked for Justice Scalia more than 20 years 
ago, but the lessons I learned still resonate. His judicial 
philosophy is mine. A judge must apply the law as written. 
Judges are not policymakers, and they must be resolute in 
setting aside any policy views they might hold.''
    She will give her statement, but I think that is a good 
summary of who she is. That is who Amy Barrett is in terms of 
the law. In terms of Amy Barrett the individual, she and her 
husband have seven children, two adopted. So nine seems to be a 
good number.
    The process. This is an election year. We are confirming 
the Judge in an election year after the voting has occurred. 
What will happen is that my Democratic colleagues will say this 
has never been done, and they are right in this regard. Nobody, 
I think, has ever been confirmed in an election year past July.
    The bottom line is Justice Ginsburg, when asked about this 
several years ago, said that a President serves for 4 years, 
not 3. There is nothing unconstitutional about this process. 
This is a vacancy that has occurred through a tragic loss of a 
great woman, and we are going to fill that vacancy with another 
great woman. The bottom line here is that the Senate is doing 
its duty constitutionally.
    As to Judge Garland, the opening that occurred with the 
passing of Justice Scalia was in the early part of an election 
year. The primary process had just started. And we can talk 
about history, but here is the history as I understand it. 
There has never been a situation where you had a President of 
one party and the Senate of another where the nominee--the 
replacement was made in an election year. It has been over 140 
years ago.
    I think there have been 19 vacancies filled in an election 
year. Seventeen of the 19 were confirmed to the Court when the 
party of the President and the Senate were the same.
    In terms of timing, the hearing is starting 16 days after 
nomination. More than half of all Supreme Court hearings have 
been held within 16 days of the announcement of the nominee. 
Stevens, 10. Rehnquist, 13. Powell, 13. Blackmun, 15. Burger, 
13.
    All I can say is that I feel that we are doing this 
constitutionally. Our Democratic friends object to the process. 
I respect them all. They will have a chance to have their say. 
But most importantly, I hope we will know more about how the 
law works, checks and balances, what the Supreme Court is all 
about when this hearing is over.
    Why hold this hearing? A lot of people on our side say just 
ram it through. I hear that a lot. That is why I do not listen 
to the radio much anymore.
    So the bottom line is I think it is important. This is a 
lifetime appointment. I would like the world and the country to 
know more about Judge Barrett. I am proud of you. I am proud of 
what you have accomplished, and I think you are a great choice 
by the President.
    This is probably not about persuading each other. Unless 
something really dramatic happens, all Republicans will vote 
yes, and all Democrats will vote no. And that will be the way, 
the break-out of the vote.
    But the hearing is a chance for Democrats to dig deep into 
her philosophy, appropriately ask her about the law, how she 
would be different, what is on her mind. It gives Republicans a 
chance to do the same thing. Most importantly, it gives you a 
chance, the American people, to find out about Judge Barrett, 
judge for yourself. Is this person qualified?
    Is she as qualified as Sotomayor and Kagan? I think so. 
These were two nominees presented to the Committee by President 
Obama. They had a different legal philosophy than my own, but I 
never doubted one moment that they were not qualified.
    I thought Gorsuch and Kavanaugh were qualified. The Senate 
in the past has looked at qualifications more than anything 
else. We have taken a different path at times--Bork, Thomas, 
Alito, Kavanaugh. I hope we do not take that path with Judge 
Barrett. She does not deserve that, and I do not think it makes 
this hearing any better. And the American people, I believe, 
would not deserve a repeat of those episodes in the Senate 
Judiciary Committee's history.
    To my Democratic colleagues, I respect you all. We have 
done some things together, and we have had some fights in this 
Committee. I have tried to give you the time you need to make 
your case, and you have every right in the world to make your 
case.
    I think I know how the vote is going to come out, but I 
think Judge Barrett is required for the good of the Nation to 
submit to your questions and ours. This is going to be a long, 
contentious week. I would just ask one thing of the Committee: 
To the extent possible, let us make it respectful, let us make 
it challenging, let us remember the world is watching.
    Senator Feinstein.

          OPENING STATEMENT OF HON. DIANNE FEINSTEIN,
          A U.S. SENATOR FROM THE STATE OF CALIFORNIA

    Senator Feinstein. Thanks very much, Mr. Chairman.
    And I do want to just address your last statements. We feel 
the same way, and I believe we want this to be a very good 
hearing. And I certainly will strive to do my best to achieve 
that.
    Good morning, Judge Barrett, and welcome to you and your 
family.
    Less than 1 month ago, the Nation lost one of our leading 
voices for equality. Ruth Bader Ginsburg left very big shoes to 
fill.
    [Poster is displayed.]
    Senator Feinstein. Judge Ginsburg loved the law, and she 
loved this country. She worked all of her life to ensure that 
the opening words of our Constitution, ``We the people of the 
United States, in order to form a more perfect union,'' 
included all the people, not just a few, elite few. She was a 
standard-bearer for justice.
    Justice Ginsburg's nomination was the first one that I 
participated in when I came to the Senate, and it was a real 
thrill to be part of that crowded and celebratory hearing for 
someone who had broken down barriers and reopened doors and 
staunchly believed in a woman's right to full equality and 
autonomy. In filling Judge Ginsburg's seat, the stakes are 
extraordinarily high for the American people, both in the short 
term and for decades to come.
    Most importantly, healthcare coverage for millions of 
Americans is at stake with this nomination. So, over the course 
of these hearings, my colleagues and I will focus on that 
subject. We will examine the consequences if--and that is a big 
``if''--Republicans succeed in rushing this nomination through 
the Senate before the next President takes office.
    But most importantly, in just a few weeks, on November 
10th, the Supreme Court will hear hearings in Texas v. 
California, a case brought to strike down the ACA. The 
President has promised to appoint Justices who will vote to 
dismantle that law. As a candidate, he criticized the Supreme 
Court for upholding the law and said, and I quote, ``If I win 
the presidency, my judicial appointments will do the right 
thing, unlike Bush's appointee John Roberts, on Obamacare,'' 
end quote.
    And when he appointed Judge Barrett to fill Justice 
Ginsburg's seat, the President said that eliminating the 
Affordable Care Act would be, quote, ``a big win for the USA.''
    Judge Barrett, you have been critical of Chief Justice 
Roberts for his 5-4 opinion upholding the law, stating that 
Roberts, quote, ``pushed the Affordable Care Act beyond its 
plausible meaning to save the statute,'' end quote. This well 
could mean that if Judge Barrett is confirmed, Americans stand 
to lose the benefits that the ACA provides. So I hope you will 
clarify that in this hearing.
    First, more than 130 million Americans with pre-existing 
conditions like cancer, asthma, or even COVID-19 could be 
denied coverage or charged more to obtain health insurance. 
This includes more than 16.8 million Californians with pre-
existing conditions, and we are just one State. But I think you 
should know how we feel.
    Second, some 12 million working Americans are covered 
through the ACA's Medicaid expansion. If the Act is struck 
down, they lose their healthcare.
    Third, more than 2 million Americans under the age of 26 
are covered by their parents' health insurance, and they could 
lose that coverage.
    Fourth, insurers could charge higher premiums for women 
simply because of their gender.
    And fifth, women could lose access to critical preventive 
services and maternity care, including cancer screenings and 
well woman visits.
    Now the bottom line is this. There have been 70 attempts to 
repeal the ACA. But clearly, the effort to dismantle the law 
continues, and they are asking the Supreme Court to strike down 
the Affordable Care Act. This, I believe, will cause tremendous 
harm.
    Consider people like Krystyna Munro Garcia of my home 
State. At age 60, Krystyna's eyesight started to fail because 
of cataracts. She had always struggled to obtain insurance 
because of pre-existing conditions, including C-sections and 
epilepsy. The cost of coverage, when it was even offered to 
her, averaged between $2,500 and $3,000 a month, far more than 
she and her husband could afford.
    In 2010, she was able to obtain coverage through the 
Affordable Care Act. Within weeks, she was able to have 
cataract surgery. This saved her life.
    [Poster is displayed.]
    Senator Feinstein. Krystyna described her reaction when she 
was able to get coverage through the California Health Exchange 
following passage of the ACA. And let me quote, ``It was like 
manna from heaven. I cried. After all these years of struggling 
to obtain coverage, I was able to get insurance through the 
California Exchange, no questions asked about my pre-existing 
conditions. The premium was worth $200 a month, as compared to 
the $2,500 to $3,000 monthly payments I would have to pay 
before the ACA, if I could even get an insurer to offer me 
coverage.''
    As Krystyna further explained, and I quote, ``People just 
do not understand what it was like--the incredible fear before 
the Affordable Care Act--having to worry about being able to 
cover medical expenses and not being able to find affordable 
insurance,'' end quote.
    We cannot afford to go back to those days when Americans 
could be denied coverage or charged exorbitant amounts. That is 
what is at stake for many of us, for America, with this 
nomination. And that is why the questions we will ask and the 
views hopefully that you will share with us are so important.
    We are now just 22 days from the election, Mr. Chairman. 
Voting is underway in 40 States. Senate Republicans are 
pressing forward, full speed ahead, to consolidate a Court that 
will carry their policies forward with, I hope, some review for 
the will of the American people.
    President Trump said last week that he had, quote, 
``instructed my representatives to stop negotiations over a 
COVID-19 relief package until after the election,'' end quote, 
and to, quote, ``focus full time on confirming Judge Barrett to 
the Supreme Court.''
    When Justice Scalia died in February 2016, Senate 
Republicans refused to consider a replacement for his seat 
until after the election. At the time, Senator McConnell said, 
``The American people should have a voice in the selection of 
their next Supreme Court Justice.'' When asked in October 2018 
if Republicans intended to honor their own rule if an opening 
were to come up in 2020, Chairman Graham promised, quote, ``If 
an opening comes in the last year of President Trump's term and 
the primary process has started, we will wait until after the 
next election.''
    Republicans should honor this word for their promise and 
let the American people be heard. Simply put, I believe we 
should not be moving forward on this nomination, not until the 
election has ended and the next President has taken office.
    Thank you, Mr. Chairman.
    Chairman Graham. Thank you very much, Senator Feinstein.
    Senator Grassley.

         OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
             A U.S. SENATOR FROM THE STATE OF IOWA

    Senator Grassley. Welcome, Judge.
    On March 1, 2016, Justice Ginsburg delivered a eulogy for 
her friend, Justice Scalia. Justice Ginsburg said, quote, ``We 
were different, yes, in our interpretations of written texts, 
yet, one in our reverence for the Court and its place in the 
U.S. system of governance,'' end of quote.
    Justice Ginsburg's remarkable life and legacy will be 
honored for generations and also Justice Scalia's.
    The Senate is now tasked with perhaps carrying out its most 
solemn duty under the Constitution. As we go through this 
process, we should heed Justice Ginsburg's words: with a shared 
reverence for the Court and its place in our constitutional 
system.
    This idea of place in our system of government is critical. 
Ours is a government of separated powers. The power to make, 
enforce, and interpret law isn't centralized in one person or 
one branch of Government. That's not by mistake.
    You all know what our American Revolution was all about. 
And what the Constitution is all about. Because people at that 
time were sick and tired of one person, George III, restricting 
American colonies of freedom that people elsewhere exercised. 
As Justice Scalia reminds us, the Framers recognized the 
separation of powers as, quote, ``the absolutely central 
guarantee of a just government because, without a secure 
structure of separated powers, our Bill of Rights would be 
worthless,'' end of quote.
    But this constitutional system only succeeds if each branch 
respects its proper role. A good judge understands it's not the 
court's place to rewrite the law as it sees fit. It's not his 
or her place to let policy, personal or moral principles 
dictate an outcome of a case.
    We are fortunate Judge Barrett's record clearly reflects 
this standard. She said, quote, ``A judge must apply the law as 
written. Judges are not policymakers, and they must be resolute 
in setting aside any policy views they might hold,'' end of 
quote.
    Judge Barrett's service reflects an exceptional intellect, 
paired with a deep commitment to the rule of law. So, we look 
to those who know her well. She has received praise across the 
legal profession and ideological spectrum. Former colleagues at 
Notre Dame described the Judge as, quote, ``brilliant, 
industrious, gracious, and kind,'' and as ``a person of utmost 
integrity, with an open mind and the even temperament that is 
prized in a judge,'' end of quote.
    She is also known as, quote, ``a generous mentor,'' and for 
her, quote, ``humility, her graciousness, and her ability, born 
of her credibility, to build consensus among differing views,'' 
end of quote. Her students ``express awe with the power of 
Judge Barrett's intellect, with her mastery and organization of 
complex material, and with her professionalism,'' end of quote.
    Leaders of more than 200 liberty-supporting groups across 
the country say Judge Barrett, quote, ``possesses the judicial 
temperament and philosophy necessary to act as a bulwark for 
our Constitution and institutions of government,'' end of 
quote.
    Twenty-four State governors describe Judge Barrett as, 
quote, ``A woman of great moral character who is devoted to her 
country, community, family, and faith, like so many 
Americans,'' end of quote.
    The Wall Street Journal editorial board says, quote,``Pres-
    ident Trump's nomination of Amy Coney Barrett for the 
Supreme Court is a highlight of his Presidency,'' end of quote.
    A promise made, a promise kept.
    Liberal Harvard Law professor Noah Feldman calls Judge 
Barrett, quote, ``a principled, brilliant lawyer . . . a 
genuinely good person,'' and ``highly qualified to serve on the 
Supreme Court.'' That's pretty high praise I just recited from 
others.
    Moreover, Judge Barrett is a tireless mother of seven. For 
decades, I've led efforts in the Senate to improve foster care 
and promote adoption. So it's a privilege for me to welcome a 
nominee like that to the Supreme Court. To sum up, Judge 
Barrett's qualifications and character are impeccable. 
Unfortunately, I expect the Minority will try to rustle up 
baseless claims and scare tactics, as they have done for 
decades--anything to derail the confirmation of Republican 
nominees.
    Lately, the left is threatening to pack the Supreme Court 
in retaliation for this confirmation process.
    Even the Democrats' nominee for President and Vice 
President have not ruled out such a blatantly partisan power 
grab. Republicans are following the Constitution and precedent. 
It seems Democrats would rather just ignore both.
    The left is also suggesting Judge Barrett's confirmation 
would be the demise of the Affordable Care Act and protections 
for pre-existing conditions.
    That's outrageous.
    As a mother of seven, Judge Barrett clearly understands the 
importance of access to healthcare.
    So let's set the record straight.
    Then-Professor Barrett criticized Chief Justice Roberts' 
conclusion that the Affordable Care Act's penalty was actually 
a tax.
    Democrats say her viewpoint is radical and a preview of how 
she might vote on the Court.
    First, her comments dealt with a provision of the law 
that's no longer in effect. So the legal questions before the 
Court this fall are entirely separate. Moreover, her criticism 
of Roberts' reasoning is mainstream--not only in the 
conservative legal community, but well beyond.
    I'm the Chairman of the Finance Committee and was Ranking 
Member when Democrats unilaterally cobbled together Obamacare. 
I know a tax when I see one. This wasn't a tax.
    It was never discussed in Committee as a tax. Even the 
Democrats who forced it through Congress insisted it wasn't a 
tax.
    Jeffrey Toobin wrote that Roberts' tax argument was, quote, 
unquote, ``not a persuasive one.'' President Obama even said, 
quote, ``I absolutely reject the notion'' that it was a tax.
    Further, Democrats and their allies should not claim to 
know how any judge would rule in any particular case. Just look 
at history. The left slammed Stevens for his ``consistent 
opposition to women's rights.'' They called Anthony Kennedy 
``sexist'' and a ``disaster for women.'' They said David Souter 
would, quote, ``end freedom for women in this country.''
    Ultimately, the left praised these very Justices that they 
attacked.
    Their doomsday predictions failed to pan out.
    Democrats and their leftist allies have also shown that 
there is no low that they won't stoop to in their crusade to 
tarnish a nominee. And I saw it all as Chairman of this 
Committee when Kavanaugh came up.
    Some of my colleagues may once again try to misrepresent 
and outright disparage Judge Barrett's religious beliefs and 
affiliations.
    In 2017, they suggested Judge Barrett was too faithful or 
too Catholic to be a judge. One Senator asked whether she 
considered herself an ``Orthodox Catholic.''
    Another told her, ``The dogma lives loudly within you and 
that is of concern.''
    Let me remind everyone that Article VI clearly prohibits 
religious tests for serving in public office.
    Mr. Chairman, I have got five sentences left.
    Judge, you will, no doubt, be asked how you will rule on 
questions and issues and whether a case was correctly decided. 
I expect that you will follow the example of Justice Ginsburg: 
A nominee should offer ``no forecasts, no hints'' of how he or 
she will vote. Because that's the role of a judge.
    That's the place of a judge in our system of government. 
Unbiased. Fiercely independent. Faithful to the rule of law. 
And a steadfast defender of the Constitution.
    Judge Barrett, I look forward to our conversation. Once 
again, congratulations.
    [The prepared statement of Senator Grassley appears as a 
submission for the record.]
    Chairman Graham. Thank you, Senator Grassley. I believe 
Senator Leahy will now join us, virtually.

          OPENING STATEMENT OF HON. PATRICK J. LEAHY,
            A U.S. SENATOR FROM THE STATE OF VERMONT

    Senator Leahy. Thank you, Chairman Graham, and I assume you 
can hear me all right?
    Chairman Graham. Yes, sir. And we see you. There you are. 
Thank you.
    Senator Leahy. Thank you.
    You know, as I listen to this, I think about the fact that 
I have served in the Senate for 46 years. During that time, we 
had 20 Supreme Court nominations, 16 confirmation hearings, and 
I can tell you right now, none looked anything like this.
    We are less than 2 weeks from Justice Ginsburg being laid 
to rest. Now it is true it is the responsibility of this 
Committee to consider her replacement on the Supreme Court, but 
this is not the way we should do it.
    We should not have had a nomination ceremony before Justice 
Ginsburg was even buried, while the Nation was mourning her 
passing. We should not be holding a hearing just 16 days later 
when this Committee has afforded itself 3 times as long to vet 
other modern nominees to our Nation's highest court.
    We should not be holding a hearing 3 weeks from a 
Presidential election when millions of Americans have already 
voted, not when doing so requires that literally half of the 
Senate goes back on their word. Think of that, my Republican 
colleagues. Literally half of the Senate had to break their 
word, contradicting every argument they made 4 years ago about 
the American people needing a voice during election year 
vacancies.
    We should not be holding this hearing when it is plainly 
unsafe to do so. Two Members of this Committee are just now 
emerging from quarantine after testing positive for COVID. And 
when other Members have declined to get tested, and the 
Chairman has refused to implement a daily testing regime to 
keep Members and staff and Judge Barrett and her family safe.
    And I might say we should not be spending time on this when 
we are doing absolutely nothing to pass a much-needed COVID 
bill. Every Senator on this Committee knows in their heart it 
is a total break with precedent, a break with their 
commitments. It is wrong.
    More than 212,000 Americans have died due to COVID. 
Millions more are hurting. The virus is spiking again across 
the country, but Senate Republicans have nothing to say about 
that. The Senate is wearing blinders to the grim realities 
facing Americans.
    Instead of talking about COVID and doing something to help 
the American people, we are engaged in this mad rush to fill a 
Supreme Court vacancy on the eve of a Presidential election. 
And why? I think the answer is painfully clear. With this 
vacancy, President Trump and Senate Republicans see the 
potential to wildly swing the balance of the Court.
    They see the ability to take the courts from being 
independent to making them instead an arm of the far right and 
the Republican Party, the potential to accomplish through the 
courts what they have failed to accomplish by votes in the 
halls of Congress.
    At the top of their hit list is the Affordable Care Act. It 
is no secret, it is no coincidence that Republicans are rushing 
to confirm Judge Barrett before the Supreme Court considers the 
latest Republican-led lawsuit to overturn the Affordable Care 
Act on November 10. The President has even promised that any 
judge he nominates will overturn the Affordable Care Act.
    One Member of this Committee has promised he will not vote 
for a judge unless he has that commitment that the nominee will 
overturn the Act. And for her part, Judge Barrett's writings 
have made it unequivocally clear she considers the Act 
unconstitutional.
    In fact, overturning the Affordable Care Act has been 
perhaps the single most important policy objective of the 
Republican Party during the past decade. If Republicans are now 
successful, the results will be nothing short of catastrophic 
for the millions of Americans who depend upon its coverage and 
protections. These are real people.
    [Photograph is displayed.]
    Senator Leahy. I believe you have in the Committee, and I 
am trying to get this so you can actually see it. This is Mary 
Nadon Scott. She lives in Northfield, Vermont. That is just 
over the ridge from my home in Middlesex, Vermont.
    In her twenties, Mary was diagnosed with Friedreich's 
ataxia, a rare neurological disease. Like my wife, Marcelle--
and I apologize, I know you have this picture in the Committee 
room--she worked--Mary worked as a nurse. Realizing she would 
soon no longer be able to pursue the career she loved, she 
asked the hospital to rotate her through different specialties 
so she could help more people in as many ways as possible. That 
is who she is.
    And now she is in a wheelchair. She can no longer practice 
nursing. She does everything she can to take care of her two 
children.
    I actually had the pleasure of calling one of her sons on 
his birthday last spring. And Mary, I know, attends their 
soccer games. She helps with their remote school. She even 
brought them to tour the Vermont State House.
    Now Mary can do this because her medication and in-home 
care is paid for by her insurance. But she is worried. Even 
with some State protections, she is worried what the Supreme 
Court case next month will mean for people with pre-existing 
conditions like her. For Mary, if she lost her insurance, her 
biggest worry is she would lose her in-home support that allows 
her to continue living at home and taking care of her children.
    Now she is a fighter. And when I think of what the 
Affordable Care Act means to millions of Americans, what is on 
the line with this nomination, I think of Mary. I think of what 
she is going to lose.
    And she is not the only one. You know, I talk to Vermonters 
all the time.
    [Photograph is displayed.]
    Senator Leahy. Now I think of another one, Martha Richards. 
She is an amazing, amazing woman. She is another Vermonter who 
reached out to my office, concerned about the fate of the 
Medicaid expansion under the Affordable Care Act.
    Martha earns just over the minimum wage in Vermont. She 
works for the Vermont State Parks, and she has raised two kids 
on her own. Just look at this person. Soon after enrolling now 
in the expanded Medicaid program, she began experiencing 
debilitating pain in her ear behind her eye. It led to a series 
of expensive medical tests, including two MRIs that would cost 
$6,000 each.
    She shudders at the thought of what would have happened 
without the Medicaid expansion. If it is discarded now, as 
Republican attorneys general have requested in the case before 
the Supreme Court, millions of Americans like Martha would be 
on their own.
    Now I do not suggest that Judge Barrett personally desires 
these consequences or personally desires to devastate the lives 
of these two Vermonters. Far from it. But these are nonetheless 
the consequences if her stated views on the law prevailing in 
the Supreme Court. And if Republicans are successful in filling 
this vacancy prior to November 10, well, then we know these 
views will almost certainly prevail.
    So that is what is at stake here. That is what weighs 
heavily on me as we begin these hearings. It also weighs 
heavily on the minds of the Vermonters I represent, and I have 
heard from them often and loudly since Justice Ginsburg's 
passing.
    They are scared, Judge Barrett. They are scared that your 
confirmation would rip from them the very healthcare 
protections that millions of Americans have fought to maintain 
and which Congress has repeatedly rejected eliminating. They 
are scared that the clock will be turned back to a time when 
women had no right to control their own bodies and when it was 
acceptable to discriminate against women in the workplace.
    They are scared that at a time when we are facing the 
perilous impacts of climate change, bedrock environmental 
protections are going to be eviscerated. And they are scared 
that your confirmation will result in the rolling back of 
voting rights, workers' rights, and the rights of the LGBTQ 
community to equal treatment.
    These are not just thoughts. These are real-life 
implications of decisions made by the Court, and a majority of 
Americans, like an overwhelming majority of my fellow 
Vermonters, do not support taking our country in that 
direction.
    Now Republicans first announced their intention to fill 
Justice Ginsburg's seat just 1 hour after her death. From that 
moment, this process has been nothing but shameful. Worse, it 
will almost certainly lead to disastrous consequences for 
Americans.
    Justice Ginsburg, I am certain, would have dissented, and I 
will, too, on behalf of Vermonters, on behalf of the integrity 
of the Senate, and on behalf of the majority of Americans who 
oppose this process.
    Thank you.
    Chairman Graham. Thank you, Senator Leahy. Senator Cornyn.

             OPENING STATEMENT OF HON. JOHN CORNYN,
             A U.S. SENATOR FROM THE STATE OF TEXAS

    Senator Cornyn. Thank you, Mr. Chairman.
    Judge Barrett, welcome to you and your family.
    The Senate Judiciary Committee undertakes no more important 
duty than the one we undertake today, considering a nomination 
for a seat on the United States Supreme Court. As the Chairman 
said, these used to be routine. Even the two Justices who were 
once considered the ideological bookends on the Court received 
overwhelming support in the Senate.
    While the two Justices had a different judicial philosophy 
and were nominated by Presidents of opposing parties, the 
Senate used to recognize that exceptional qualifications were 
all that was required for a seat on the Court. Throughout your 
impressive career, you have earned the respect of those who 
share your views on the law, as well as those who do not.
    As Justice Ginsburg said of her unlikely friendship with 
Justice Scalia, ``You can disagree without being 
disagreeable.'' But I do not want to imply that you disagree 
frequently. In fact, during your time on the Seventh Circuit, 
you have sided with your colleagues more than 95 percent of the 
time.
    And when you have had the rare disagreement, your opinions 
attack the ideas, not the person. We could use more of that. 
Your collegiality has been demonstrated in the numerous letters 
pouring in from your colleagues, clerks, students, virtually 
everybody with whom you have come in contact. Folks with widely 
different judicial philosophies agree that you are brilliant, 
respectful, kind, and when you disagree, you do so without 
personal rancor or malice.
    While your qualifications and reputation are on par with 
those Justices who have sat in this seat before you, the 
political climate in which you are being vetted is quite 
different, as we all know. What our colleagues on the other 
side of the aisle put Justice Kavanaugh through 2 years ago was 
an absolute disgrace and, hopefully, a low point for the 
Senate.
    They and some of their allies sought to destroy the 
personal character of a good man with innuendo, misinformation, 
and outright lies. I hope they resist the temptation to repeat 
that during this hearing.
    I do remain concerned, Judge, about some of the earlier 
attacks on your faith. In a recent Wall Street Journal column, 
a Wisconsin Supreme Court justice wrote, ``To put it bluntly, 
America's secular cultural elites are not sure that a faithful 
Christian can be entrusted with the law.''
    A former senior aide to former Majority Leader Harry Reid 
recently said the groups want blood. Democrats on and off the 
Committee want a real fight. But let me be clear, Judge, as you 
know, there is no religious test to serve on the Supreme Court. 
Why? Because the Constitution says so. And I can only hope that 
the civility that you have shown through your professional work 
will be afforded to you through these proceedings.
    But, Judge, there is a question that comes up in my 
discussions with my constituents that is really more basic and 
more personal. They want to know how you do it. How do you and 
your husband manage two full-time professional careers and at 
the same time take care of your large family? I will bet there 
are many young women, like my own two daughters, who marvel at 
the balance that you have achieved between your personal and 
professional life.
    As is customary and important, I also look forward to 
revisiting the appropriate role of judges in our constitutional 
Republic, something that you can see there appears to be some 
dispute about here. You and I both know that judges should not 
be policymakers. But could it be that one of the reasons these 
confirmation hearings have become so contentious is because 
some Americans have given up on the idea of fair and impartial 
judges who do not pick winners and losers, that they have given 
up on an independent judiciary? I hope not.
    Judges should not be unelected super-legislators, giving 
their political allies wins they could not secure through the 
rough and tumble of the political process. Our Founders through 
the Constitution provided that judges would be independent of 
political pressure.
    Chief Justice Roberts reminded all of us recently that we 
do not have Obama judges or Trump judges, Bush judges or 
Clinton judges. And ideally, that is true. You have said judges 
constrain themselves by making a choice to follow the law where 
it leads, trying to check their own preferences at every turn.
    In the end, a judge's internal compass, her commitment to 
the rule of law, rather, is the most important constraint upon 
any sort of judicial willfulness. But you are being asked to 
abandon that, Judge. You stand accused of intending to violate 
your oath before you even take it. Further, our Democratic 
colleagues want you to guarantee a result in a case as a quid 
pro quo for your confirmation. It is outrageous.
    Well, they have said that if this confirmation proceeds, 
they intend to pack the court with more Justices who will turn 
the Supreme Court into a genuine second legislative body. We 
heard what Justice Ginsburg had to say about that. That would 
be a terrible mistake.
    Judge Barrett, I am confident that at the end of this 
hearing, your stellar character, credentials, and body of work 
as a judge will demonstrate that you understand the limited, 
but important, role of the judiciary under our Constitution. I 
am confident that you will demonstrate that you will faithfully 
and fairly interpret the texts of the law and the Constitution 
and dutifully apply them to the disputes that come before you. 
And I am confident that at the end of this process, you will be 
confirmed to the United States Supreme Court.
    Chairman Graham. Senator Durbin.

          OPENING STATEMENT OF HON. RICHARD J. DURBIN,
           A U.S. SENATOR FROM THE STATE OF ILLINOIS

    Senator Durbin. Thank you, Mr. Chairman.
    Judge Barrett, your family, welcome.
    We are at a critical moment in our Nation's history, in the 
throes of a devastating pandemic with over 216,000 Americans 
dead and over 7.7 million infected with this virus. Each day, 
we are reminded of how this invisible virus has changed our 
lives and changed America, and there is no end in sight.
    We face an economy in crisis, with millions of jobs lost 
and crushing challenges facing workers, businesses, families 
all across America. And we are in the middle of an election 
season. Millions of Americans have already cast their votes.
    And this may be one of the most consequential elections in 
our Nation's history because for the first time in the history 
of the United States, an incumbent President refuses to commit 
to a peaceful transition of power if he loses the election. 
This President, in his vanity and constitutional recklessness, 
refuses to commit to accept the will of the American 
electorate.
    And, of course, we are still in the process of mourning the 
loss of an historic champion of justice and equality, Ruth 
Bader Ginsburg. Justice Ginsburg spent her entire life and 
every ounce of strength and talent she was given in the pursuit 
of America's highest ideal: equal justice under the law. Her 
absence is deeply felt.
    Now this is the context in which the Senate Majority 
Republicans are defying the traditions of the Senate and 
rushing forward with President Trump's third nomination to the 
U.S. Supreme Court. It has been recounted earlier that Justice 
Ginsburg was approved by the Senate by a 96-to-3 vote. This 
icon of liberal thinking, advocate for the ACLU, 96-to-3 before 
the United States Senate. And then Antonin Scalia, on the 
opposite polar end of the political spectrum, approved 98-to-
nothing. Amazing.
    Can this be the same Senate? It is not. The reason those 
votes were so overwhelming was because people lived by the 
rules, they lived by the traditions of the Senate, and they had 
mutual respect for one another. We know now that this process 
has not adhered to those guidelines.
    The haste in this pursuit before us today is unfair to the 
Senate and unfair really to the nominee. The nominee before us 
was announced 16 days ago, the day after Justice Ginsburg lay 
in State in the United States Capitol. We received the 
nomination paperwork 13 days ago and have learned since then 
that some materials are missing.
    The speed with which Republicans are moving to fill this 
vacancy stands in sharp contrast to the approach taken by the 
same Senate Republicans the last time there was a vacancy in an 
election year in 2016.
    [Poster is displayed.]
    Senator Durbin. Behind me is the McConnell rule. On 
February 13, 2016, when Justice Scalia passed away, Senator 
McConnell said, and I quote, ``The American people should have 
a voice in the selection of their Supreme Court Justice. 
Therefore, this vacancy should not be filled until we have a 
new President.''
    This rock-solid statement of principle was made 269 days 
before the 2016 election. The Republican Members of this 
Committee fell obediently in line behind Senator McConnell's 
statement of principle. They even sent a letter on February 23, 
2016, and I quote, ``This Committee will not hold hearings on 
any Supreme Court nominee until after our next President is 
sworn in.''
    The letter noted that, quote, ``The election is well 
underway.'' That was 269 days before the election. And said the 
decision was, quote, ``born of a necessity to protect the will 
of the American people.''
    Yet when Justice Ginsburg passed away on September 18th 
this year, Senator McConnell said that very same night, and I 
quote, ``President Trump's nominee will receive a vote on the 
floor of the United States Senate.'' He made this statement a 
mere 46 days before the election. People had already begun 
casting votes, and my Republican colleagues marched in front of 
the cameras, looked down at their shoes, dutifully reversed 
their positions, and lined up obediently behind their Leader 
again.
    It gets down to this: Either the American people do get an 
election year voice regarding a vacancy on the Supreme Court, 
or they do not. In 2016, Senator McConnell said, give them a 
voice. Now he says, do not give them a voice. It is a 
shameless, self-serving, venal reversal.
    Why are Senate Republicans so afraid to give the American 
people a voice about the future of the Supreme Court? First, 
they must doubt that Donald Trump will be re-elected. Second, 
they want a 6-3 Supreme Court to carry out a Republican agenda 
that is really not very popular with the American people. And 
there are two dates on the calendar which explain their 
timetable: November 3rd and November 10th.
    We know November 3rd is Election Day. President Trump has 
made it clear he wants another of his appointees on the Supreme 
Court before the election because he anticipates Court 
challenges over the vote, especially over mail-in balloting, 
which he has repeatedly attacked without any substance. 
President Trump has indicated he would be perfectly happy to 
have a close election decided by a 6-3 conservative majority 
Supreme Court rather than by the votes of the American people.
    The other date, of course, is November 10th. We know that 
date well on this Committee. That is the date the Supreme Court 
will hear oral arguments in California v. Texas. This is the 
case in which the Trump administration is urging the Court to 
strike down the entire Affordable Care Act, including 
protections for tens of millions of Americans with pre-existing 
conditions.
    It is unimaginable that in the midst of a pandemic, the 
Republicans want to strike down a law that 23 million Americans 
rely on for their personal health insurance and millions more 
for the protections given to the writing of future insurance 
policies.
    On September 27th, President Trump tweeted he wants to see 
the Affordable Care Act ``terminated in the Supreme Court.'' 
Let us be very honest about this. This President has never 
suffered an unuttered thought. He gives us 25 tweets a day to 
tell us what is going through that fertile mind.
    We know what he thinks because he tells us what he thinks, 
and he made it clear that he wants his Supreme Court and this 
nominee to join him in eliminating the Affordable Care Act. 
This is his litmus test. How many times have we heard it? How 
many times have we heard his criticism of Chief Justice Roberts 
for failing to strike down Obamacare?
    When he was running for President, then-candidate Trump 
tweeted, quote, ``If I win the presidency, my judicial 
appointments will do the right thing, unlike Bush's appointee 
John Roberts, on Obamacare.'' Think what it would mean if the 
Republicans were to strike this down, all the people who would 
lose their coverage, which we have heard recounted repeatedly 
this morning and will hear even more.
    Republicans in Congress have been obsessed with repealing 
Obamacare for years, but they do not have the votes to do it. 
They could not get it done in the House. They could not get it 
done in the Senate, thanks to three brave Republicans, 
including John McCain. And now they have got to rely on the 
Court to do their work.
    Judge Barrett, you are on the record. You wrote an article 
in which you criticized the NFIB v. Sebelius case, where Chief 
Justice Roberts was the deciding vote upholding the ACA. Now 
your nomination is moving forward at unprecedented speed.
    So what is at stake? Let me show you what is at stake here.
    [Poster is displayed.]
    Senator Durbin. I want you to meet Kenny Murray from Tinley 
Park, Illinois, and his family. Last year, I had the privilege 
of meeting the family in my Washington office. Here is a 
picture of Sue, Ken, their daughter, Maddie, and their son, 
Kenny.
    Sue and Kenny Murray told me that their son, Kenny, was 
diagnosed in utero with multiple complex congenital heart 
defects. Before his first birthday, Kenny had two open-heart 
surgeries at Advocate Children's Hospital outside of Chicago. 
He had surgery for the third time at 14 months of age. Four 
months of his young life, he was staying in the pediatric ICU, 
and his health bills had reached $1 million.
    When Kenny was born in November 2013, his dad's health 
insurance through his employer had a lifetime maximum cap of $1 
million. Thankfully, the Affordable Care Act banned insurance 
companies from imposing these annual or lifetime limits, 
including on employer-sponsored health insurance.
    That ban went into place in January 2014, 6 days before 
Kenny's first surgery. If it were not for the ACA, Sue and Ken 
would have hit the lifetime limit for Kenny in just 4 months. 
They told me they would have gone bankrupt. Thanks to the 
Affordable Care Act, Kenny was able to get the care he needed.
    [Poster is displayed.]
    Senator Durbin. This last picture I want to show you. Well, 
here he is. Would you not want him on your team? I sure would.
    When she gave permission for me to share Kenny's story 
today, his mom, Sue, said, quote, ``Kenny is a real person 
whose life depends on the Affordable Care Act.''
    Judge Barrett, your nomination for a lifetime appointment 
to the highest court in the land comes before us under a cloud. 
You have been nominated by a President who shows contempt for 
the Constitution but does not hesitate to tell his loyal 
followers that you are being sent to the Bench to do his 
political chores: Abolish the ACA, rule in his favor on any 
election contest, and even more.
    You cannot feel good about a President cheapening this 
historic moment. The future of the Affordable Care Act and so 
many other issues hang in the balance: voting rights, civil 
rights, the right to privacy and choice, environmental 
protection, gun safety laws, marriage equality, Dreamers, 
worker protection. These are the stakes.
    If we wait just a few more days, we will know what the 
American people have to say.
    Chairman Graham. Thank you, Senator Durbin. Senator Lee, 
welcome back.

           OPENING STATEMENT OF HON. MICHAEL S. LEE,
             A U.S. SENATOR FROM THE STATE OF UTAH

    Senator Lee. Thank you, Mr. Chairman. Welcome, Judge 
Barrett, and welcome to your family as well.
    Judge Barrett, you and I have a number of things in common. 
We were both raised in large families. In fact, we are both one 
of seven children. In your case, as I recall, you are the 
oldest of seven children, which means that long before you had 
your own seven children you were also the de facto mother to 
many others, the way things often work in large families, as 
such that the oldest child very often takes on responsibilities 
at an early age.
    Those responsibilities have undoubtedly helped you 
throughout life, establishing leadership roles in your career 
as a lawyer, as a professor, and now as a judge. Those 
leadership roles, of course, mean something different in the 
judicial branch of Government than they do in the executive 
branch or the legislative branch of Government.
    We have heard this morning a number of arguments that are 
essentially policy arguments, many of them geared toward actual 
policies, in some cases actual pieces of legislation. We have 
to remember that we have got three distinct branches of 
Government within our system. We have got two that are 
political, the legislative branch, where we work, where we make 
laws, and the executive branch, headed by the President, where 
the laws are executed, implemented, and enforced, and, of 
course, the judicial branch, where you work, where the laws are 
interpreted, where people come to disagreement as to their 
meaning.
    The branches are sometimes referred to as equal. I don't 
think this is the best description of them. I think the best 
description of them is that they are coordinate branches of 
Government, and that they each exist within their own sphere. 
They are not equal in the sense that the least dangerous branch 
was, is, always has been, and always will be the judicial 
branch, for the simple reason you can't reach out. You can't 
decide where we are going to go today or tomorrow.
    The judiciary is confined solely to those cases and 
controversies brought before your jurisdiction. You look not 
into the future but in the past. You see the world as it were 
through a rear-view mirror. Your job is to decide what the law 
says, when people disagree as to the law's meaning. Those laws 
consist of words. Those words, used in a particular 
combination, in a particular context, had a particular meaning 
on the day of their enactment or their incorporation into the 
Constitution--and that is your job.
    And yet if you were watching today's hearing, and some of 
the statements made by some of my colleagues, in fact, if you 
were to look at any of the countless posters put up in here, 
you would think that this was a political discussion, a policy 
discussion, a legislative discussion. You, in fact, are not 
being reviewed for a legislative position or a policymaking 
position. You are being reviewed for a position on our Nation's 
highest court, where you will be asked from time to time to 
decide cases based on the law and based on the facts.
    This is not something that should result, or properly 
should be considered by us as something that requires us to 
examine whether, to what extent, in what way you have 
compassion for any of the individuals depicted in these photos. 
I am certain, just based on my limited interaction with you, 
that you have compassion for all people.
    But this isn't the question, nor is the question before us 
whether you would agree or disagree as to any particular policy 
embedded within any particular statute. You understand that 
this isn't your job, not as a judge on the U.S. Court of 
Appeals for the Seventh Circuit, where you now sit, nor would 
it be if you were to be confirmed as an Associate Justice to 
the United States Supreme Court.
    One might also have the impression, from watching this 
morning's proceedings so far, that the Supreme Court of the 
United States is a remarkably bitter, cynical, and 
overwhelmingly partisan place. It is not. You and I have both 
clerked at the U.S. Supreme Court and we both know that if you 
actually look at the numbers you will see something remarkable, 
despite its flaws and despite the fact that it sometimes makes 
mistakes. The Supreme Court of the United States sits atop 
something that is the envy of the entire world: A judicial 
system that, despite the fact that it is run by human beings 
and, therefore, is imperfect, is the best judicial system that 
has ever existed on Planet Earth.
    One of the many ways in which this is manifested is when 
you look at the nine members of the Supreme Court and the fact 
that they come from different backgrounds. They have been 
appointed by different Presidents. They have come at it with 
somewhat different judicial philosophies to the extent that 
some of them have indicated what their political leanings might 
be. They indicate that they come from different political 
backgrounds as well.
    And yet the most common configuration of a Supreme Court 
decision is not 5-to-4. It is not even 6-to-3. And it is, in 
fact, 9-to-0, 8-to-1, and 7-to-2 make up the vast, overwhelming 
majority of all Supreme Court decisions. Now this is especially 
remarkable when you consider the fact that the Supreme Court 
typically takes up only those cases, those rare cases as to 
which lower courts have been unable to reach an agreement when 
interpreting the same finite provisions of Federal law, of 
Federal statute, or a provision of the United States 
Constitution. Multiple lower courts, very smart men and women 
from around the country, highly specialized, skilled in their 
trade, have been unable to reach the same conclusion as to the 
meaning of the same group of words. Then, and only then, does 
the Supreme Court tend to take up those cases. And yet the 
Supreme Court overwhelmingly decides those cases either 
unanimously or near unanimously, and without these partisan 
divisions that one, from watching this hearing, would think is 
the bread and butter of the Supreme Court's work. The 5-to-4 
configuration is actually relatively rare.
    When it does arise it is not even always involving a hot-
button political issue. Most of the Supreme Court's docket 
doesn't even consist of the hot-button issues. A whole lot of 
it consists of stuff that I find really, really fascinating, 
like the Dormant Commerce Clause. I mean, what American doesn't 
sit up late at night and stew over whether it is okay for a 
State or a political subdivision thereof to treat an article of 
commerce differently based on its origin or destination, out of 
State or outside the United States? This, of course, is the 
kind of case that comes before the Supreme Court, and might, 
from time to time, be decided on a 5-to-4 basis, but not 
necessarily along the lines that one would predict based on the 
appointment of each Justice and the political party of each 
Justice's appointing President.
    There are, of course, some decisions that are politically 
charged, and that Americans do worry about more than others, 
that might affect more Americans, let's say, than a decision 
about waste disposal in the context of the Dormant Commerce 
Clause. I understand that. I get that. But there, too, we can't 
overstate or overplay the role the Supreme Court of the United 
States might exert in that context. Even in those 
circumstances, when the Supreme Court rules that something has 
been done in a way that is not constitutional it doesn't mean 
that that is the end of the policy road there. Sometimes it 
might mean the wrong government acted. Sometimes it might mean 
that the Federal Government acted where a State should have, or 
the other way around. Other times it might mean that the wrong 
branch of Government acted. Other times it might mean that they 
went about it the wrong way. There is nearly always another way 
around a particular policy concern, whether we are talking 
about healthcare, whether we are talking about privacy, and 
individual liberty.
    Each and every person serving anywhere in our Government 
has an obligation to look out for the best interests of those 
they represent. In fact, each and every person serving as an 
officer of the United States Government is required, under 
Article VI of the Constitution, to take an oath to uphold and 
protect and defend the Constitution of the United States.
    [Pocket version of the United States Constitution is 
displayed.]
    Senator Lee. The Constitution, in short, this document, 
written nearly two-and-a-half centuries ago, has helped foster 
the development of the greatest civilization the world has ever 
known, is not just a judicial thing. This is a thing that 
works, and works best when every one of us reads it, 
understands it, and takes and honors an oath to uphold it and 
protect it and defend it. When we do our jobs in this branch, 
when our friends in the executive branch do their jobs, it 
requires us to follow the Constitution just the same way.
    These tactics of creating fear and uncertainty and doubt, 
these tactics that result in relentless protests, outside of 
the one branch of Government that isn't political, astound me. 
But they dismay me, and they disappoint me. They reflect the 
fact that we have allowed for the politicization of the one 
branch of the Federal Government that is not political.
    We can turn that around. We, ourselves, within the 
legislative branch, have got to do a better job by focusing on 
the fact that the Constitution is not just a judicial thing. It 
is also a legislative thing. It is also an executive thing. It 
is an American thing. It is one of the many reasons why I will 
object any time anyone tries to attribute to you a policy 
position and hold you to that. You are not a policymaker. You 
are a judge. That is what we are here to discuss.
    Thank you very much, Mr. Chairman.
    Chairman Graham. Well, definitely some good news. Senator 
Lee's enthusiasm for the Dormant Commerce Clause convinces me 
you have made a full recovery.
    Senator Whitehouse.

         OPENING STATEMENT OF HON. SHELDON WHITEHOUSE,
         A U.S. SENATOR FROM THE STATE OF RHODE ISLAND

    Senator Whitehouse. Mr. Chairman, Judge Barrett, America is 
worried about one thing above all else right now, and it is our 
health. This hearing itself is a microcosm of Trump's dangerous 
ineptitude in dealing with the COVID pandemic. Trump can't even 
keep the White House safe. Here, it is the Chairman's job to 
see to the Committee's safety, and though his words were 
reassuring, I don't know who has been tested, who should be 
tested, who is a danger, what contact tracing has been done on 
infected and exposed Senators and staff. Nothing. The whole 
thing, just like Trump, is an irresponsible botch.
    The irony is that this slapdash hearing targets the 
Affordable Care Act. This Supreme Court nominee has signaled, 
in the judicial equivalent of all caps, that she believes the 
Affordable Care Act must go and that the precedent protecting 
the ACA doesn't matter. The big secretive influences behind 
this unseemly rush see this nominee as a judicial torpedo they 
are firing at the ACA.
    So, I hope Republicans consider what is at stake for the 
many people who depend right now, in this pandemic, on ACA 
health coverage. Rhode Islanders are calling, writing, 
emailing, tweeting me, by the thousands, asking me to say 
``no'' to this nominee, mostly because they, too, see her as a 
judicial torpedo aimed at their essential protections. And my 
constituents want you, my colleagues, Members of the Republican 
Party, to stand up, for once, to Mitch McConnell, and to the 
big donors who are driving this process, and for the sake of 
regular people, say ``stop.''
    [Poster is displayed.]
    Senator Whitehouse. Here is one person to consider, Laura, 
from North Smithfield, Rhode Island. Laura's brother saved her 
life when he donated one of his kidneys to her. The hereditary 
nephritis Laura battled was a pre-existing condition, protected 
under the ACA, just like COVID is now a pre-existing condition 
for nearly 8 million Americans.
    Laura tells me, without the ACA and its protections for 
people with pre-existing conditions, ``insurance premiums, if I 
am able to get insurance at all, will be financially out of 
reach for me. I will no longer be able to afford the health 
monitoring, labs, specialist appointments, and treatment that 
are essential for my kidney to function. My immunosuppressive 
medications alone would cost about $48,000 annually. Before the 
ACA, patients like me experienced times when they would come up 
against a life-threatening wall, not in treatment but in the 
annual or lifetime caps on coverage insurers were allowed to 
impose. I can't imagine what this would have meant for me--
bankruptcy or worse.''
    Laura is not alone. We are in the midst of a relentless, 
deadly health crisis that Trump has botched, which touches 
nearly everyone in this country. Americans are dying by the 
hundreds of thousands. Our economy is down 10 million jobs. 
Despite all the warnings and all the desperate pleas for help, 
people on the front line--healthcare workers, teachers, first 
responders, police officers, countless others--still struggle 
for the resources they need. More and more small businesses are 
closing for good. Many hospitals teeter at the edge of 
insolvency. Rhode Island, like so many other States, faces 
cruel fiscal challenges brought on by this pandemic.
    Since May, the House has passed two major COVID relief 
bills to tackle unemployment insurance, aid to the front lines, 
help to small business, support for hospitals, support for 
States and localities, and plenty more. Mitch McConnell's 
Senate Republicans won't budge. No urgency, he said. But, 80 
minutes after we learned of Justice Ginsburg's death, Mitch 
McConnell signaled he would fill this vacancy. The White House 
chose a replacement 3 days later. Justice Ginsburg hadn't been 
buried when the President and Senate Republicans celebrated 
Judge Barrett's nomination at the White House superspreader 
event.
    This was a hypocritical, tire-squealing 180 for many 
Republican colleagues. When they blocked Merrick Garland, we 
heard nonstop about the importance before an election of the 
American people weighing in at the ballot box--nonstop, that 
you shouldn't have a nominee appointed to the Court after the 
primary season had begun. Well now, with Americans voting right 
now in the general election, we get this mad slapdash rush. 
Why? Look at the Supreme Court calendar. Exactly 1 week after 
the election, on November 10th, the Supreme Court is going to 
hear California v. Texas, a constitutional challenge to the 
ACA. It survived its last challenge by one vote.
    If the new challenge succeeds with a new Justice, the case 
will tear out the ACA, the law on which over 20 million 
Americans rely for health insurance, through which 17 million 
Americans access Medicaid coverage, under which 129 million 
Americans get pre-existing conditions covered, under which 
millions of seniors enjoy lower drug costs. Gone. And make no 
mistake, this nominee's signals on the ACA, and on respect to 
the ACA precedent, are clear. Clear enough to move her to the 
top of the big donors list.
    Just 3 years ago she wrote that Chief Justice Roberts 
pushed the Affordable Care Act beyond its plausible meaning to 
save the statute. In 2013, she wrote that stare decisis is 
``not a hard-and-fast rule in the court's constitutional 
cases,'' the ACA being a constitutional case. Clear signals 
that are likely why she is before this Committee now.
    So back to Laura. With stories like Laura's coming in from 
around the country, why would we rush forward? Well, the answer 
isn't pretty. There is a promise to big donors that must be 
kept. When David Koch ran for Vice President he campaigned on 
getting rid of Medicare and Medicaid. Imagine his fury when 
Obamacare passed. His groups are spending millions right now to 
fund this nomination. Republicans in Congress tried and failed 
to repeal the ACA more than 70 times. It is in the Republican 
Party platform for Justices to reverse the ACA decision. Trump 
has over and over said this is his reason, and now we are in 
this mad rush to meet the November 10th argument deadline, and 
colleagues pretend this isn't about the ACA. Right.
    The travel of the ACA case leads to one Senator's doorstep. 
In a Politico article yesterday, the senior Senator from Texas 
tried to say that this rushed process isn't targeting the ACA. 
But look at the record. The district judge in Texas, who struck 
down the ACA in the case now headed for the Court is a former 
aide to the Senator, who has become what the Texas Tribune 
calls the favorite for Texas Republicans seeking big judicial 
wins, like torpedoing the ACA.
    The senior Senator from Texas introduced in Committee a 
circuit court judge who wrote the decision on appeal striking 
down the ACA. Senator Cornyn has filed brief after brief 
arguing for striking down the ACA. He led the failed Senate 
charge to repeal the ACA in 2017. He said, ``I have introduced 
and co-sponsored 27 bills to repeal or defund Obamacare and 
have voted to do so at every opportunity.'' And now, talking 
about socialized medicine, the old Republican battle cry 
against Medicare, Senator Cornyn and all of our colleagues on 
this Committee are pushing to get this nominee on by November 
10th, the time needed to strike down the Affordable Care Act. 
Please don't tell us this isn't about the Affordable Care Act.
    From Cornyn judge, to Cornyn judge, to this nominee, hop, 
hop, hop. When Texans lose their ACA healthcare protections, 
hop, hop, hop to see whose doorstep that sits on.
    Lost in this hypocritical rush is the legacy of Ruth Bader 
Ginsburg. Let me close by remembering her for a minute in this 
unseemly charade. She fought for equality, equity, and dignity. 
She forged a path for women and the law, to Harvard Law School, 
to the pinnacle of legal academia, to the apex of legal 
advocacy and on to the Supreme Court, where she defended 
women's reproductive rights, Gonzales v. Carhart; the rights of 
workers, Ledbetter v. Goodyear Tire and Rubber; voting rights, 
Shelby County v. Holder; the rights of immigrants, Homeland 
Security v. Regents; and countless other freedoms. In her work, 
she bent the arc of the moral universe toward justice for all 
Americans. How fitting that she should be the first woman to 
lie in state in our United States Capitol.
    As to this charade, big donors may love it but Americans 
see what is going on. They see this ugly, hasty, hypocritical 
power grab and they know what it means for their healthcare in 
the midst of a pandemic. For Republicans there is no washing 
your hands of responsibility for the results that your 
President has told us will ensue.
    Thank you, Mr. Chairman.
    Chairman Graham. Thank you.
    Senator Cruz I think is with us virtually. Is that correct?
    Senator Cruz. Yes, Mr. Chairman.
    Chairman Graham. All right.

              OPENING STATEMENT OF HON. TED CRUZ,
             A U.S. SENATOR FROM THE STATE OF TEXAS

    Senator Cruz. Thank you, Mr. Chairman. Good morning. 
Welcome. Welcome to Judge Barrett. Welcome to your family. 
Welcome to your beautiful children who are here with you today.
    You know, I want to start by making some observations about 
what we have heard this morning. At the very beginning, let me 
observe, as Sherlock Holmes famously observed, that what speaks 
the loudest is the dog that didn't bark. Which is, to date, of 
every Democrat who has spoken we have heard virtually not a 
single word about Judge Barrett. We have heard a lot of attacks 
at President Trump. We understand our Democratic colleagues are 
not supporters of the President. We have heard a lot of 
political rhetoric. We just heard the Senator from Rhode Island 
directing some attacks at Senator Cornyn from Texas, and I 
understand there is an election in a few weeks so those 
political attacks are not surprising.
    But we have heard very little about the nominee who is here 
and whose confirmation we are considering. And I think part of 
the reason for that is that on any measure Judge Barrett's 
credentials are impeccable. This is a woman who graduated 
number one in her class at Notre Dame Law School. I would 
venture to say that there is likely not a single Member of this 
Committee who graduated number one in their class in law 
school. Perhaps my colleague, Mike Lee, can disagree with that 
statement, but it is a very impressive accomplishment.
    Judge Barrett went on to be a clerk to the great Justice 
Antonin Scalia, one of the greatest Justices ever to serve on 
the Supreme Court. We heard celebration from Senator Leahy 
about the fact that he was confirmed 98-to-nothing.
    From there she became a law professor for two decades at 
Notre Dame Law School, teaching the law to her students where 
she was beloved, where she was respected, where she was a 
serious, careful scholar. And now she is one of the most 
respected Federal court of appeals judges in the country.
    None of the discussions from our Democratic colleagues 
addressed any of that, because those credentials are, on their 
face, impeccable. Indeed, the American Bar Association, which 
typically leans hard left and has a long pattern of favoring 
Democratic nominees over nominees appointed by Republican 
Presidents, had no choice but conclude that she was ``well 
qualified,'' as a majority of the reviewing board did. Judge 
Barrett's qualifications are remarkable, and I believe she will 
serve as an excellent Supreme Court Justice.
    So, what is it that our Democratic friends have focused on? 
Well, one thing they have focused on is history, and they claim 
the fact that this nomination is occurring at all is 
illegitimate. It doesn't matter who Judge Barrett is. It 
doesn't matter what she has done. It doesn't matter her record. 
It doesn't matter her extraordinary family story of doing all 
of this while being a mom to seven kids. The timing of the 
nomination, our Democratic friends tell us, makes it 
illegitimate.
    Well, except for that history does not accurately reflect 
what the Senate has done over two centuries. This question of 
what happens when there is a Supreme Court vacancy during a 
Presidential election year, 2020 is not the first time America 
has faced that question. Indeed, in our country's history, that 
question has come up a total of 29 times. So, 29 times 
Presidents have faced the same circumstance.
    And Presidents have nominated individuals to fill those 
positions all 29 times, 100 percent. And, it doesn't matter if 
you are a Democrat or Republican. From a President's 
perspective, it is easy. If there is a vacancy, even during a 
Presidential election year, you make a nomination. Forty-four 
individuals have served as President throughout the history of 
our country. Half of them, 22 of the Presidents we have had, 
have made Supreme Court nominations for vacancies that occurred 
during a Presidential election year.
    But what has the Senate done? Well, again, the Senate 
precedent is quite clear and it is something that our 
Democratic friends do not want to address, do not want to 
confront. Of those 29 times, 19 of them occurred when the 
President and the Senate were of the same party, and when the 
President and the Senate are the same party, history shows that 
those nominees get confirmed--17 of those 19 were confirmed for 
vacancies that occurred during a Presidential election year.
    On the other hand, for those doing math at home, the 
remaining 10 occurred when the Senate and the President were of 
different parties. When the President and Senate are of 
different parties the Senate, over history, has confirmed only 
2 of those 10 nominees. Again, history is clear. The 
overwhelming majority of instances that the President and 
Senate are of different parties, that nominee doesn't get 
confirmed. That is, of course, what happened with Judge 
Garland, nominated by President Obama. President Obama was a 
Democrat, the Senate was in Republican hands, and following 
tradition of 200 years, the Senate did not confirm that 
nominee.
    Now, some might think the difference between whether the 
Senate and the President are of the same party or different 
party that that is just a question of partisan alignment, of 
partisan power, but that actually misunderstands the 
constitutional structure. The Framers of the Constitution 
deliberately set up a system of checks and balances so that 
nobody can become a Supreme Court nominee without both the 
President and the Senate. Each was designed to check the other. 
That system of checks and balances limits power, ultimately, 
and protects the voters, and indeed, the voters made a clear 
choice.
    You know, one of the things that is clear from this 
discussion this morning is Democrats and Republicans have 
fundamentally different visions of the Court, of what the 
Supreme Court is supposed to do, what its function is. 
Democratic Senators view the Court as a super-legislature, as a 
policymaking body, as a body that will decree outcomes to the 
American people. Now that vision of the Court is something 
found nowhere in the Constitution, and it is a curious way to 
want to run a country, even if, on any particular policy issue, 
you might happen to agree with wherever a majority of the Court 
is, on any given day.
    Who in their right mind would want the United States of 
America ruled by five unelected lawyers wearing black robes? It 
is hard to think of a less democratic notion than unelected 
philosopher kings with life tenure decreeing rules for 330 
million Americans. That is not, in fact, the Court's job. The 
Court's job is to decide cases according to the law, and to 
leave policymaking to the elected legislatures. Now look, that 
doesn't mean policymaking is unimportant. In fact, it means to 
the contrary. Policymaking is very important, and the people 
need to have a direct check on policymaking.
    You know what? If a rogue Court implements policies you 
don't like, you, the American people, have very limited ability 
to check them. If a rogue Congress implements policies you 
don't like, you have a direct ability to check us by throwing 
the bums out and voting them out and voting in new 
representatives.
    You know, much of the argument this morning has concerned 
Obamacare, and there have been policy arguments--and the policy 
arguments that are actually occurring in the Senate, which is 
the right place for them to occur, a legislative body. But our 
Democratic colleagues simply want a promise from a judicial 
nominee that this nominee will work to implement their policy 
vision of healthcare. That is not a judge's job. That is not 
the responsibility of a judge, and, in fact, making that 
promise would be violating the judicial oath.
    I don't know what will happen in this particular litigation 
on healthcare, but I do know that this body should be the one 
resolving the competing policy questions at issue. Many of our 
colleagues talked about pre-existing conditions, and I think 
they have made a political decision. They want this to be the 
central issue of the confirmation. Well, remember this: Every 
single Member of the Senate agrees that pre-existing conditions 
can and should be protected. Period. The end. There is complete 
unanimity on this.
    Now, it so happens that there are a number of us on the 
Republican side that also want to see premiums go down. 
Obamacare has caused premiums to skyrocket. The average 
family's premiums have risen over $5,000 a year. Millions of 
American's can't afford healthcare because of the policy 
failures of Obamacare. Those questions should be resolved in 
this body, in the elected legislature. It is not a Justice's 
job to do that. It is not the Court's job to do that. It is the 
elected legislature's job to do that.
    Judge Barrett brings impeccable credentials, a judicial 
temperament, and a faithfulness to the law. That is what we 
should be looking for in Supreme Court Justices. And, if 
Democratic Senators want to engage in policy arguments they can 
do so here, not by filibustering every bill, as they have done, 
over and over and over again, whether it is pandemic relief or 
Obamacare relief to lower premiums and expand choices. To date, 
our Democratic colleagues filibuster everything and then 
complain nothing gets passed.
    This is the body that has to resolve those questions. This 
is also the body that, consistent with two centuries of 
precedent, can, should, and I believe will confirm Judge 
Barrett as Justice Barrett. Thank you.
    Chairman Graham. Senator Klobuchar.

            OPENING STATEMENT OF HON. AMY KLOBUCHAR,
           A U.S. SENATOR FROM THE STATE OF MINNESOTA

    Senator Klobuchar. Welcome, Judge Barrett.
    This Committee is gathered today for what I consider one of 
its most solemn duties and one that I take very seriously. 
Federal judges, Senators, the President of the United States--
we all take an oath to uphold the Constitution. We make 
promises to do justice, to tell the truth. At its core that is 
what judges do. Right? Figure out the truth. Figure out 
justice. My mom, a second-grade teacher, spent her life 
teaching little kids what was right or wrong, what was true or 
false. I still believe it matters and so do the American 
people.
    But we are dealing with a President who doesn't think truth 
matters, and he has allies in Congress who, in the past, 
defended our democracy but are now doing his bidding. Senators 
who clearly set out that the President--a precedent that the 
President, in an election year, should wait, that we should 
have an election, and that then the people choose the 
President, and the President chooses the nominee. That was your 
precedent.
    It has been said that the wheels of justice turn slowly. 
Injustice, on the other hand, can move at lightning speed, as 
we are seeing here today. We cannot, and you watching at home 
should not, separate this hearing from the moment we are in and 
from the judge he is trying to rush through.
    To respond to Senator Cruz, this isn't a rush to justice. 
This is a rush to put in a Justice, a Justice whose views are 
known and who will have a profound impact on your life. And 
yes, these policies that the Court decides, they matter--where 
you can go to school, who you can marry, decisions you can make 
about your own body, and yes, your healthcare.
    The President knows this. We have a President who has 
refused to commit to a peaceful transfer of power after an 
election. Every candidate does that, but not this guy. We have 
a President who has fired or replaced five Inspector Generals, 
Senator Grassley, who has fired an Attorney General, an FBI 
Director, and is now going after their replacements.
    We have a President who divides our country each and every 
day. He has called our military ``suckers'' and ``losers,'' he 
has refused to condemn white supremacists, and he has the gall 
to hold up a Bible as a prop in front of a church instead of 
heeding its words to act justly. And now he says this election 
will end up in court. Why, Senator Cruz, does President Trump 
matter? He is putting the Supreme Court in place, in his words, 
to, quote, ``look at the ballots,'' end quote.
    Well, I won't concede that this election is headed to the 
Court, because you know, at home, exactly what the President is 
up to. That is why you are voting. That is why you are voting 
in droves. Why are you voting? Well, you know that your rights, 
your health, your healthcare is on the line. You know that they 
are trying to push through a Justice who has been critical of 
upholding the Affordable Care Act, and they are doing it in the 
middle of a pandemic. And you can see here in this room the 
misplaced priorities of this Republican-run Senate, and it is 
in your hands to change it.
    Are they working to pass a bill to help Americans to get 
the testing they need to save their lives? Are they working to 
help the moms trying to balance a toddler on their lap while 
balancing a laptop on their desk? Are they trying to help our 
seniors, isolated, missing graduations and birthdays? Are they 
passing the bill the House passed that would help our economy? 
That is not the priority. Instead, they choose to do this.
    So, no. We cannot divorce this nominee and her views from 
the election we are in. We didn't choose to do this now, to 
plop a Supreme Court nomination hearing in the middle of an 
election. They did.
    So, the reason people aren't going to fall for this is 
because it is so personal. The over 210,000 people who have 
died. The school, canceled. The small business, closed. The job 
you don't have. The degree you couldn't get. It is personal to 
me because my husband got COVID early on. He ended up in the 
hospital for a week on oxygen with severe pneumonia, and months 
after he got it, I find out the President knew it was airborne 
but he didn't tell us. We were cleaning off every surface in 
our house, and my husband got it anyway. We didn't know.
    And my dad, at 92, he got it in his assisted living. I 
stood there outside his window in a mask, and he looked so 
small and confused. He knew who our family was but he didn't 
know what was going on. I thought it was going to be the last 
time that I saw him.
    He miraculously survived, but Marny Xiong, she didn't.
    [Poster is displayed.]
    Senator Klobuchar. Marny was a rising star, the chairwoman 
of the St. Paul School Board and just 31 years when COVID took 
her life. Her dad felt sick, she went with him to the hospital 
because he was scared, and then she got sick. She never got off 
a ventilator and died. The daughter of Hmong refugees whose 
parents fled Laos to a refugee camp in Thailand before arriving 
in Minnesota, Marny and her seven siblings grew up in St. Paul. 
Their family, the American dream. This is who this virus has 
taken from us, someone who has left behind a mother and a 
father and seven siblings who loved her, and someone who 
undoubtedly would have made the world a better place.
    The President could have saved so many lives. Instead, he 
has been reckless, packing people in without masks for your 
nomination party, Judge Barrett. Thirty-five people got sick. 
The President himself ended up in the hospital, and when he 
leaves Walter Reed, still contagious, he defiantly takes off 
his mask and walks into the White House. And then he lies and 
says the virus will magically go away.
    The truth matters, and the truth is, America, that this 
judicial nominee has made her views so clear, and this 
President is trying to put her in a position of power to make 
decisions about your lives. The Affordable Care Act protects 
you from getting kicked off of your insurance. That's on the 
line. The President has been trying to get rid of Obamacare 
since he got in power. John McCain went in and stopped it with 
that big thumbs down.
    Then they went and brought a case to the U.S. Supreme Court 
and they are now trying to stack the deck against you right 
now. The last time this was before the Court in a big way was 
when Justice Roberts, not exactly a blazing liberal, voted the 
same as Justice Ginsburg, to uphold the Affordable Care Act. 
And this nominee, she criticized him.
    America, this is about you.
    [Poster is displayed.]
    Senator Klobuchar. It is about these two girls up here, 
Evelyn and Maraya, identical twins from Cambridge, Minnesota: 
honor roll students, star athletes. They play on the softball 
team. One is a pitcher and one is a catcher. They also play 
basketball. One of them got severe diabetes when she was very 
young. It doesn't matter which one--the pitcher, the catcher--
they both deserve good healthcare. They get that with one 
stroke of a pen, one judge can decide if millions of Americans, 
including their family, would lose their insurance. One judge 
can decide if millions of Americans can lose their right to 
keep their kids on their insurance until they are 26 years old. 
One judge can decide that if seniors' prescription drugs, which 
already are too high, could soar even higher.
    This is a judgeship that was held by an icon who voted to 
protect your healthcare: Ruth Bader Ginsburg, a woman who never 
took ``no'' for an answer. When they told her a girl shouldn't 
go to law school, she graduated first in her class. And when 
they told her a man should argue landmark equal protection 
cases because maybe they would have a better chance of winning, 
she did it herself and she won. She never gave up. She had her 
own hashtag well into her eighties, the Notorious RBG. And her 
last fervent wish was that a new President, the winner of this 
election, would pick her replacement.
    When you look at her opinions you realize she wasn't just 
writing for today, she was writing for tomorrow. To the women 
of America, we have come so far. And in the name of RBG, we 
should not go backward.
    As the rabbi said at Justice Ginsburg's memorial in the 
Capitol, her dissent, her strong words when she would disagree 
with the Republican-appointed Justices, her words were never 
cries of defeat, they were blueprints for the future.
    So to all Americans, this hearing, whatever these guys try 
to do, whatever you hear from me, it will not be a cry of 
defeat. It will instead be our blueprint for the future. Yes, 
Judge, I think this hearing is a sham. I think it shows real 
messed-up priorities from the Republican Party. But I am here 
to do my job, to tell the truth.
    To all Americans, we don't have some clever procedural way 
to stop this sham, to stop them from rushing through a nominee, 
but we have a secret weapon that they don't have. We have 
Americans who are watching, who work hard every day, believe in 
our country and the rule of law, whether they are Democrats, 
Republicans, or Independents. They know what this President and 
the Republican Party are doing right now is very wrong. In 
fact, 74 percent of Americans think we should be working on a 
COVID relief package right now instead of this.
    Let me tell you a political secret. I doubt that it will be 
a brilliant cross-examination that is going to change this 
judge's trajectory this week. No. It is you. It is you calling 
Republican Senators and telling them enough is enough, telling 
them it is personal, telling them they have their priorities 
wrong. So do it, and it is you voting, even when they try to do 
everything to stop you. It is you making your own blueprint for 
the future instead of crying defeat.
    So do it. This isn't Donald Trump's country. It is yours. 
This shouldn't be Donald Trump's judge. It should be yours.
    Thank you, Mr. Chairman.
    Chairman Graham. Senator Sasse.

              OPENING STATEMENT OF HON. BEN SASSE,
           A U.S. SENATOR FROM THE STATE OF NEBRASKA

    Senator Sasse. Thank you, Mr. Chairman. Judge Barrett, 
welcome, congratulations. Jesse Barrett, congratulations.
    I just want to say Senator Klobuchar said a number of 
things about COVID that I agree with. She cited a bunch of 
really painful stories in Minnesota, and similar stories could 
be told from across the country. I even agree with parts of her 
criticism of the mismanagement of COVID by Washington, DC.
    I don't know what any of that has to do with what we are 
here to do today. Huge parts of what we are doing in this 
hearing would be really confusing to eighth graders, civics 
classes across the country tuned in to this hearing and tried 
to figure out what we are here to do, and they heard as much as 
they have heard about 2009 Finance Committee debates about what 
should be in a healthcare reform package. I am blessed to sit 
not just on the Judiciary Committee but also on the Finance 
Committee, and lots of the discussions we have had in here 
today fit better in a Finance Committee hearing than in a 
Judiciary Committee hearing.
    So, I think it would be very useful for us to pause and 
remind ourselves, and do some of our civic duty to eighth 
graders, to help them realize what a President runs for, what a 
Senator runs for, and on the other hand, why Judge Barrett is 
sitting before us today, and what the job is that you are being 
evaluated for. So if we can back up and do a little bit of 
eighth-grade civics I think it would benefit us and benefit the 
watching country, and especially watching eighth-grade civics 
classes.
    So, I would like to distinguish first between civics and 
politics, because there was a time--the Chairman said at the 
beginning of this hearing, there was a time when people that 
would be as different as Ruth Bader Ginsburg, and she was a 
heroic woman, that is absolutely true, and Antonin Scalia, 
another brilliant mind and your mentor--people that different 
could both go through the Senate and get confirmation votes of 
95 or 98 votes. And the Chairman said at the beginning of the 
hearing, he doesn't know what happened between then and now.
    I think some of what happened between then and now is we 
decided to forget what civics are and allow politics to swallow 
everything. So if I can start I would like to just remind us of 
the distinction between civics and politics. Civics is the 
stuff we are all supposed to agree on, regardless of our policy 
views differences. Civics is another way we talk about the 
rules of the road. Civics 101 is the stuff like Congress writes 
laws, the executive branch enforces laws, courts apply them. 
None of that stuff should be different if you are a Republican 
or a Democrat or a Libertarian or a Green Party member. This is 
basic civics. Civics is the stuff that all Americans should 
agree on, like religious liberty is essential, people should be 
able to fire the folks who write the laws, and the voters can't 
fire the judges. Judges should be impartial. This is just 
Civics 101.
    Politics is different. Politics is the stuff that happens 
underneath civics. Civics is the overarching stuff we, as 
Americans, agree and have in common. Politics is the 
subordinate, less important stuff that we differ about. 
Politics is like, if I look at my friend, Chris Coons, and I 
say, ``Listen up, jackwagon. What you want to do on this 
particular Finance Committee bill is going to be way too 
expensive and might bankrupt our kids.'' Or, if Chris looks 
back at me and says, ``Listen up, jackwagon. You are too much 
of a cheapskate and you are under-investing in the next 
generation.''
    That is a really important debate. That is a political 
debate. That is not civics. Civics is more important than that. 
Civics doesn't change every 18 to 24 months because the 
electoral winds change and because polling changes.
    I think it is important that we help our kids understand 
that politics is the legitimate stuff we fight about and civics 
is the places where we pull back and say wait a minute, we have 
things that are in common and before we fight again about 
politics let's reaffirm some of our civics.
    So, I would like to have just sort of a basic grammar of 
civics for 5 minutes: One thing that we should all agree on and 
two things that we should all disagree with. We should agree on 
it, but one thing that we agree about and are in favor of, and 
two things that we agree on that we should all reject.
    First, a positive, grand, unifying truth about America, and 
that is religious liberty. Religious liberty is the basic idea 
that how you worship is none of the Government's business. 
Government can wage wars, government can write parking tickets, 
but government cannot save souls. Government is really 
important. War is important. Parking tickets are important. But 
your soul is something that the Government can't touch.
    So whether you worship in a mosque or a synagogue or a 
church, your faith, or your lack of faith, is none of the 
Government's business. It is your business, and your family's 
and your neighbors' and all sorts of places where people break 
bread together and argue, but it is not about power. It not 
about force. It is not about the Government.
    This is the fundamental American belief. Religious liberty 
is one of those five great freedoms clustered in the First 
Amendment--religion, speech, press, assembly, and protest. 
These five freedoms that hang together, that are the basic pre-
governmental rights, are sort of Civics 101 that we all agree 
on well before we ever get to anything as relatively 
inconsequential as tax policy. So, civics should be the stuff 
we affirm together.
    And contrary to the belief of some activists, religious 
liberty is not an exception. You don't need the Government's 
permission to have religious liberty. Religious liberty is the 
default assumption of our entire system. And because religious 
liberty is the fundamental 101 rule in American life, we don't 
have religious tests.
    This Committee isn't in the business of deciding whether 
the dogma lives too loudly within someone. This Committee isn't 
in the business of deciding which religious beliefs are good 
and which religious beliefs are bad and which religious beliefs 
are weird. And I just want to say, as somebody who is self-
consciously a Christian, we have got a whole bunch more really 
weird beliefs: forgiveness of sins, the virgin birth, 
resurrection from the dead, eternal life. There are a whole 
bunch of really, really crazy ideas that are a lot weirder than 
some Catholic moms giving each other advice about parenting. 
And yet, there are places where this Committee has acted like 
it is the job of the Committee to delve into people's religious 
communities.
    That is nuts. That is a violation of our basic civics. That 
is a violation of what all of us believe together. This is not 
a Republican idea. It is not a Democrat idea. It is Democrat 
idea and a Republican idea, but more fundamentally, it is an 
American idea. And the good news is whether you think your 
religious beliefs might be judged wacky by someone else, it is 
none of the business of this Committee to delve into any of 
that in this context. Because in this Committee and in this 
Congress and in this constitutional structure, religious 
liberty is the basic truth, and whatever you or I or Judge 
Barrett believe about God isn't any of the Government's 
business. We can all believe in that in common, we should all 
reaffirm that in common, and that should be on display over the 
course of the next 4 days in this Committee.
    Now a couple of terms that all of our eighth graders should 
know as things we should reject in common, and again, shared 
rejection, not Republican versus Democrat or Democrat versus 
Republican, but a shared American rejection. And the first is 
this: judicial activism. Judicial activism is the idea that 
judges get to advocate for or advance policies, even though 
they don't have to stand for election before the voters and 
even though they have lifetime tenure. Judicial activism is the 
really bad idea that tries to convince the American people to 
view the judiciary as a bloc of progressive votes and 
conservative votes, Republican Justices and Democratic 
Justices. This is the confused idea that the Supreme Court is 
just another arena for politics.
    When politicians try to demand that judicial nominees, who 
are supposed to be fair and impartial--when politicians try to 
get judicial nominees to give their views on cases or to give 
their views on policies, to try to get them to pre-commit to 
certain outcomes in future court cases, we are politicizing the 
courts, and that is wrong. That is a violation of our oath to 
the Constitution.
    Likewise, when politicians refuse to give answers to the 
pretty basic question of whether or not they want to try to 
change the number of Justices in the Court, which is what 
court-packing actually is--when they want to try to change the 
outcome of what courts do in the future by trying to change the 
size and composition of the Court, that is a bad idea that 
politicizes the judiciary and reduces public trust.
    On the other hand, de-politicizing the Court looks a lot 
like letting courts and judges do their jobs and the Congress 
do our jobs. If you don't like the policies in America, great, 
elect different people in the House and in the Senate and in 
the Presidency. Fire the politicians at the next election. But 
voters don't have the freedom to fire the judges. Therefore, we 
should not view judges, and we should not encourage judges or 
the public to view them as ultimately politicians who hide 
behind their robes.
    The antidote to judicial activism is originalism. 
Originalism, also known as textualism, is basically the old 
idea from eighth-grade civics that judges don't get to make 
laws. Judges just apply them. An originalist comes to the Court 
with a fundamental humility and modesty about what the job is 
that they are there to do. An originalist doesn't think of 
herself as a super-legislator whose opinions will be read by 
angels from stone tablets in heaven.
    Judicial activism, on the other hand, is the bad idea that 
judges' black robes are just fake, and truthfully they are 
wearing red or blue partisan jerseys under there. We should 
reject all such judges. And so today, when we have a nominee 
before us, we should be asking her questions that are not about 
trying to predetermine how certain cases will be judged.
    And a final term that we should be clear about, I mentioned 
earlier but I think it is worth underscoring, is we should 
underscore what is court-packing. Court-packing is the idea 
that we should blow up our shared civics, that we should end 
the deliberative structure of the Senate by making it just 
another majoritarian body for the purposes of packing the 
Supreme Court. Court-packing would depend on the destruction of 
the full debate here in the Senate, and it is a partisan 
suicide bombing that would end the deliberative structure of 
the United States Senate and make this job less interesting for 
all 100 of us--not for 47 or 53, because it is hard to get to a 
super-majority that tries to protect the American people from 
51-49, 49-51 swings all the time.
    What blowing up the filibuster would ultimately do is try 
to turn the Supreme Court into the ultimate super-legislature. 
Court-packing is not judicial reform, as some of you who wrote 
the memo over the weekend got a lot of media to bite on. Court-
packing is destroying the system we have now. It is not 
reforming the system we have now. And anybody who uses the 
language that implies filling legitimate vacancies is actually 
just another form of court-packing, that is playing the 
American people for fools. And the American people actually 
want a Washington, DC, that de-politicizes more decisions, not 
politicizes more decisions.
    So, Judge, I am glad that you are before us. I am looking 
forward to hearing your opening statement later today, and I 
look forward to the questioning you have to endure over the 
next 2 or 3 days, even though you probably look forward to it a 
little bit less. Congratulations and welcome.
    Chairman Graham. Senator Coons.

        OPENING STATEMENT OF HON. CHRISTOPHER A. COONS,
           A U.S. SENATOR FROM THE STATE OF DELAWARE

    Senator Coons. Thank you, Mr. Chairman. Judge Barrett, to 
you and your family, welcome.
    Over the past weeks, I have been flooded with calls, texts, 
emails from Delawareans, Delawareans who are scared because 
they are worried, worried about their own health, the health of 
a parent or child because they do not know if it is safe for 
their kids to go to school, if their businesses will survive, 
or because they are wondering why on earth this Senate is 
focused on racing forward with a Supreme Court nominee but is 
not willing to take a vote to provide needed relief for them 
and their families.
    It is an understandable question when we are in the midst 
of a devastating global pandemic in which more than 210,000 
Americans have died, more than 7 million have been infected and 
have a new pre-existing condition. Why, there were just 300,000 
new cases this week. And today, more than 25 million Americans 
are collecting unemployment.
    This is an ongoing national emergency and as an exercise in 
civics, not politics, we in Congress should be working day and 
night to deliver them that relief.
    Instead, my colleagues are barreling forward with a 
confirmation hearing that is distracting from our 
responsibility to our constituents and threatens to further 
tear our Nation apart.
    Mr. Chairman, as you know, we are just 22 days from an 
election. There is no precedent, despite my colleagues' lengthy 
and, I think, hypocritical lecture about the history--there is 
no precedent in our Nation's history for confirming a Supreme 
Court nominee by the Senate this close to a Presidential 
election in which a majority of States are already voting.
    In fact, 6 million Americans have voted. This process flies 
in the face of the very rule Republicans set themselves in 2016 
when they refused, as a matter of politics, not of civics, to 
even consider a highly qualified nominee, Judge Merrick 
Garland, 9 months before an election simply because it was an 
election year.
    Mr. Chairman, in 2018, you went a step further and said if 
an opening on the Supreme Court came up in the last year of 
President Trump's term you would wait until the next election 
and let the voters decide.
    So, what changed? Sadly, nothing. Nothing except the fact 
that this time President Trump and his allies in the Senate saw 
a chance in Justice Ginsburg's untimely passing to shift the 
balance of the Supreme Court for decades to come and that will 
have consequences in the real lives of millions of Americans.
    Proceeding with this confirmation today is wrong, and if I 
could, to my colleague who just spoke, religious liberty, I 
agree, is foundational to our civics and our Republic, and I 
and my colleagues will focus, Judge Barrett, on your legal 
writings, your opinions, your articles, your speeches as a law 
professor and judge. And I think when we do that, we will 
conclude the ways in which you may serve as a Justice will do 
irreparable harm.
    I think proceeding with this nomination in this way at this 
time will also do harm to what remaining trust we have in each 
other, to the Senate as a whole, and potentially to the Court 
itself.
    As if all of this were not reason enough for us to delay, 
we are proceeding, despite having two Members of this Committee 
who have contracted the virus. That is why the Senate is out of 
session today.
    That is why all of us, when not speaking, are wearing 
masks. That is why the distance between us. In light of all of 
this, in light of the stresses on our country, I think this 
rushed, hypocritical partisan process should not proceed.
    But instead, we are. So let me try and help explain to 
those who have reached out to me why and why it matters. 
Centrally, it is this.
    President Trump has promised over and over and over again 
that he would repeal the Affordable Care Act. He ran on that 
promise. But despite his very best efforts, he has failed. My 
Republican colleagues here and in the House have voted over and 
over and over to repeal the Affordable Care Act since it was 
passed a decade ago.
    But, thankfully, for the people of our Nation and my State, 
they too have been unsuccessful. And yet today, to make good on 
this promise to achieve what they could not accomplish through 
the democratic process, they are looking to the courts, in 
fact, to the Court. They are looking to this nominee.
    President Trump explicitly promised anyone he nominated to 
the Supreme Court would ``do the right thing,'' and be a vote 
to overturn the Affordable Care Act. In just 1 week after the 
upcoming election, the Supreme Court will hear a case in which 
the Affordable Care Act is at issue and where the Supreme Court 
will hear argument that supports the Trump administration and 
the Trump's Department of Justice position to strike down this 
landmark law.
    So, let me be clear. Just a week after the upcoming 
election, the Trump administration will be telling the Supreme 
Court to tear down the very law that provides healthcare 
protections in the middle of an ongoing pandemic.
    Judge Barrett, you have publicly criticized the Supreme 
Court's past decisions upholding the Affordable Care Act, and I 
think that is appropriately at issue in the days to come. The 
President knows this and it is one reason why he and my 
colleagues are rushing to have this confirmation just in time 
to hear the administration's challenge to the Affordable Care 
Act.
    I do not think this is a coincidence. It is beyond ironic 
that this administration, which has failed to respond to this 
pandemic, is rushing through a judge they believe will vote to 
strip away healthcare protections.
    Today, because of the Affordable Care Act, insurance 
companies cannot discriminate against women for being women. 
They cannot charge more. They cannot treat pregnancy as a pre-
existing condition.
    I cannot think of a sharper irony as we consider the legacy 
of Justice Ginsburg, who dedicated her life to fighting for 
gender equality.
    It also prevents insurance companies from charging any with 
pre-existing conditions more so Americans no longer have to 
worry about going bankrupt because of an unexpected illness or 
accident.
    Do not take my word for it.
    [Poster is displayed.]
    Senator Coons. Listen to the voice of Carrie, who is behind 
me to my right. Carrie from Middletown, Delaware, used to pay 
$800 a month for ``junk insurance,'' as she called it, coverage 
so skimpy she had to live in fear of going to the doctor's 
office or needing medication.
    Because of the ACA, she was able to get better coverage to 
pay what she can afford based on her income. She has diabetes. 
She has high blood pressure. But thanks to the ACA, she cannot 
be denied care or coverage.
    She told me when we spoke, ``This takes the stress and the 
worry out of it,'' and then asked me, ``How is this even at 
issue? Wasn't that settled years ago?''
    Carrie is right. She should have the peace of mind that you 
can care for yourself and your family if you get sick. I have 
heard so many more stories from Delaware.
    [Poster is displayed.]
    Senator Coons. Just over my shoulder here is Debbie from 
New Castle, a self-employed small business owner, who receives 
her health insurance through the Marketplace. Her pre-existing 
condition requires her to attend physical therapy and doctor's 
appointments multiple times each month.
    Without the ACA, insurance companies would have charged her 
more because of her condition and she would not be able to 
afford her medical bills and support her small business.
    [Poster is displayed.]
    Senator Coons. There is Barb Slater from Newark, Delaware, 
who was diagnosed with scleroderma 4 years ago. After losing 
her employer-sponsored health insurance, she was able to find 
new coverage in the Marketplace, thanks to the Affordable Care 
Act.
    My inbox and the inbox of all my colleagues are filled with 
stories like Carrie's, Debbie's, Barb's, and they highlight the 
breadth of what the ACA means to the American people: the 
ability of young people to stay on their families' insurance, 
lower out-of-pocket cost for seniors' prescriptions, the 
elimination of lifetime caps. These protections are on the line 
in the ballot and on the docket of the Supreme Court.
    And it is not just the ACA at risk. Judge, I am deeply 
concerned about ways in which your approach to something that 
may sound abstract to folks watching: stare decisis, or 
precedent.
    That means your approach to reviewing and reconsidering and 
possibly overturning long-settled cases may overturn some of 
the very principles for which Justice Ginsburg fought her 
entire adult life: principles that protect settled fundamental 
rights for all Americans.
    What might this mean? Cases like Griswold v. Connecticut, 
that established married couples have a right to obtain and use 
contraception in the privacy of their own home, may be in 
danger of being struck down.
    It means cases like Roe v. Wade, which protects a woman's 
right to make her own critical health care decisions, may be on 
the line.
    And it means Obergefell v. Hodges, which made marriage 
equality the law of this land, could be overruled just a day 
after we celebrated Coming Out Day nationally, stripping LGBTQ 
individuals of what Justice Kennedy memorably called ``equal 
dignity in the eyes of the law.''
    This is what I believe is at stake with this nomination.
    Judge Barrett, you will be deciding cases that have real 
daily impacts on the lives of millions of Americans. They 
deserve to understand why President Trump nominated you and 
what consequences your decisions may have on them and their 
lives.
    I have heard my Republican colleagues say all they care 
about is finding a future Justice who will apply the law as 
written, as if all this is about today is an abstract fight 
about interpretive methodology and jurisprudence.
    They seem shocked we are talking about what the Supreme 
Court might do if Judge Barrett were to become Justice Barrett.
    But, Judge Barrett, I am not suggesting you made some 
secret deal with President Trump. But I believe the reason you 
were chosen is precisely because your judicial philosophy, as 
repeatedly stated, could lead to the outcomes President Trump 
has sought. And I think that has dramatic and potentially very 
harmful consequences with regards to the election, the 
Affordable Care Act, and long-settled rights.
    This is what I intend to lay out this week and this is what 
I hope the American people will hear in the course of this 
confirmation hearing.
    Thank you, Mr. Chairman.
    Chairman Graham. Thank you, Senator Coons.
    For planning purposes, I think, I talked to Senator 
Feinstein, we will go to Senator Hawley, Blumenthal, and 
Tillis. We will take a 30-minute break to grab a bite to eat 
and take a little bit of a break, and come back and finish up. 
Senator Hawley.

             OPENING STATEMENT OF HON. JOSH HAWLEY,
           A U.S. SENATOR FROM THE STATE OF MISSOURI

    Senator Hawley. Thank you, Mr. Chairman.
    Judge Barrett, welcome. It is good to see you again. Jesse 
Barrett, welcome, and to you and your family as well. I see 
that some of your children are getting a break.
    They have earned it, I think. I am amazed as I have been 
watching. I have got two little boys at home, my wife and I do. 
I cannot believe how calmly your children have been sitting for 
a couple of hours. So maybe you can give me some tips, Jesse 
and Judge, when we are finished here.
    You know, we have gotten to read a lot about your family in 
the last few weeks. We have gotten to read a lot about you in 
the press and, in particular, about your religious beliefs, one 
attack after another in the liberal media, one hit piece after 
another, many of them echoed by Members of this Committee, like 
this one, for instance: ``Barrett long active with insular 
Christian group.''
    We have read--we have read stories about your Catholic 
lifestyle, stories about how you raise your children, stories 
about how you adopted your children, stories about your 
Catholic doctrinal beliefs, over and over and over questioning 
whether you have, I guess, the independence to be a judge--a 
Justice on the United States Supreme Court.
    And it is not just in the newspapers. It is Members of this 
Committee, including the Democratic nominee for Vice President 
of the United States, who has questioned past nominees who have 
come before this Committee about their membership in Catholic 
fraternal organizations like the Knights of Columbus.
    And for those watching at home, that is right. You heard me 
correctly. Senator Harris and others on this Committee have 
repeatedly questioned judicial nominees' fitness for office 
because of their membership in the Knights of Columbus.
    The Ranking Member, when you were last before this 
Committee, Judge, for your initial confirmation hearings, the 
Ranking Member referred to your Catholic convictions as 
``dogma''--that is a quote--``that lives loudly within you,'' 
picking up the very terminology of anti-Catholic bigotry 
current in this country a century ago.
    She was not alone. Other Senators on this Committee last 
time asked you if you were an ``Orthodox Catholic.'' One 
Senator said she worried that you would be a Catholic judge if 
you were confirmed because of your religious beliefs--I guess, 
as opposed to an American judge, as if you cannot be both a 
devout Catholic and a loyal American citizen.
    And it is not just you, Judge. Other nominees who have come 
before this Committee for years now have been asked by my 
Democrat colleagues over and over their views on sin, their 
views on the afterlife, their views about the membership 
statements of Catholic organizations, about their membership in 
other Christian organizations, and on and on and on.
    And let us be clear about what this is. This is an attempt 
to broach a new frontier, to set up a new standard. Actually, 
it is an attempt to bring back an old standard that the 
Constitution of the United States explicitly forbids. I am 
talking about a religious test for office.
    Article VI of the Constitution of the United States--before 
we even get to the Bill of Rights, Article VI of the 
Constitution of the United States says clearly, and I quote, ``No
religious test shall ever be required as a qualification 
to any office or public trust under the United States.''
    Now, that was big news in 1787 when it was written and it 
is worth remembering why. It is because no country, no republic 
in the history of the world, had ever guaranteed to its 
citizens the right to freedom of conscience and religious 
liberty.
    Every other country that had ever existed tied together the 
religious beliefs that would be approved by the powerful and 
the right to serve in office or to vote or just to be a 
citizen.
    In every other country across history you had to agree with 
what those in power agreed with in order to hold office or be a 
citizen in good standing.
    You had to sign a particular religious confession or you 
had to disavow particular religious groups, swear not to follow 
the Pope, for instance. You had to pledge allegiance to the god 
of the city or the god of the empire.
    This was true from 18th-century Britain all the way back to 
ancient Rome. And so when our Founders put Article VI into the 
Constitution of the United States, they were making a very 
deliberate choice.
    They were breaking with all of that past history and they 
were saying in America it would be different. In the United 
States of America we would not allow the ruling class to have 
veto power over your faith, over what Americans believed, over 
who we gathered with to worship and why and where and how.
    No, in this country the people of the United States would 
be free to follow their own religious convictions, free to 
worship, free to exercise their religion, and people of faith 
would be welcome in the public sphere. They would be welcome 
there.
    They would be welcome without having to get the approval of 
those in power like those on this Committee. They would be 
welcome to come and to bring their religious beliefs to bear on 
their lives, on their office, in all that they do so long, of 
course, as they were peaceful citizens who followed the law.
    Religious people of all backgrounds would be welcome in 
public life and no person in power would be able to control 
what the American people, any American citizen, thought or 
believed or who they worshipped.
    This freedom of conscience and religious liberty undergirds 
all of our other rights because it tells the Government that it 
cannot tell us what to think or who we can assemble with or how 
we can worship or what we can say.
    And that is why Article VI is there even before we get to 
the Bill of Rights and the First Amendment. But this bedrock 
principle of American liberty is now under attack. That is what 
is at stake when we read these stories attacking Judge Barrett 
for her faith.
    That is what is at stake when my Democratic colleagues 
repeatedly question Judge Barrett and many other judicial 
nominees about their religious beliefs, about their religious 
membership, about their religious practices, about their family 
beliefs and practices.
    That is an attempt to bring back the days of the religious 
test. That is an attempt to bring back the veto power of the 
powerful over the religious beliefs and sincerely held 
convictions of the American people. And that is what is at 
stake in this confirmation hearing.
    Judge Barrett is a Catholic. We all know that. She is a 
devout Catholic. We all know that. She and her husband have 
chosen to raise their family according to their Catholic 
beliefs in faithful fellowship with other Catholics.
    We all know that. Heck, 65 million Americans are Catholics 
and many, many millions more are Christians of other 
persuasions.
    Are they to be told that they cannot serve in public 
office? That they are not welcome in the public sphere unless 
the Members of this Committee sign off on their religious 
beliefs?
    I, for one, do not want to live in such an America, and the 
Constitution of the United States flatly prohibits it. Now, the 
Constitution says that people of faith, like Judge Barrett, are 
welcome in high office, welcome in any office, welcome 
throughout our public life here in this country.
    And I would just say to my Democrat colleagues that these 
years now, this pattern and practice, as we say in the law, 
this pattern and practice of religious bigotry, because that is 
what it is.
    When you tell somebody that they are too Catholic to be on 
the bench, when you tell them they are going to be a Catholic 
judge, not an American judge, that is bigotry. The pattern and 
practice of bigotry from Members of this Committee must stop, 
and I would expect that it be renounced.
    Now, I just heard my colleague, Senator Coons, make a 
reference to an old case, the Griswold case, which I can only 
assume is another hit at Judge Barrett's religious faith, 
referring to Catholic doctrinal beliefs.
    I do not know what else it could be since no one has 
challenged this case. It is not a live issue and has not been 
for decades. This is the kind of thing I am talking about and 
this is the sort of attacks that must stop.
    I look forward, Judge Barrett, to getting the chance to 
speak with you further about your legal credentials, about your 
legal views, about your approach to the law, and your judicial 
philosophy.
    But I hope the one thing that this confirmation process 
will stand for in the end, I hope when we look back at the 
confirmation hearings for Judge Amy Barrett, soon, I hope, to 
be Justice Amy Barrett, one thing we will say is that was the 
time, that was the year that the attempt to bring back 
religious tests for office was finally stopped.
    Thank you, Mr. Chairman.
    Chairman Graham. Senator Blumenthal.

         OPENING STATEMENT OF HON. RICHARD BLUMENTHAL,
          A U.S. SENATOR FROM THE STATE OF CONNECTICUT

    Senator Blumenthal. Thank you, Mr. Chairman.
    Judge Barrett and to your family, welcome to the Committee.
    [Poster is displayed.]
    Senator Blumenthal. I want to introduce you to one of my 
constituents, Connor Curran of Ridgefield, Connecticut. He is 
10 years old and he suffers from Duchenne muscular dystrophy. 
It is a horrible, incurable disease. It slowly deprives 
children of the strength and their ability to move. Eventually, 
it robs them of their lives.
    The costs of providing Connor's care are astronomical. But 
for Connor and his family, it is worth every penny. Connor is a 
superhero, but he has always had a real sidekick.
    He has had the protection of the Affordable Care Act. It 
has shielded him and his family from arbitrary caps on coverage 
that would have cut off his care when it became too expensive. 
It has protected Connor from losing insurance because of this 
insidious disease that he never caused and chose.
    The Affordable Care Act has given his family a measure of 
relief, of hope, of peace. They still worry about Connor's 
health, but not their coverage or its cost. Connor and millions 
of others like him are why I will oppose your nomination.
    Your nomination is about the Republican goal of repealing 
the Affordable Care Act, the Obamacare they seem to detest so 
much. It is about people like Connor, protections for people 
with pre-existing conditions, tax credits that make health 
insurance more affordable, bans on charging women more simply 
because they are women.
    That is what my Republican colleagues have been fighting to 
repeal for the last decade. They voted dozens and dozens of 
times to repeal the Affordable Care Act and they have 
challenged it twice unsuccessfully in the United States Supreme 
Court, and each time they failed.
    But now, just 1 week after the election, as you know, the 
fate of the Affordable Care Act will be, again, in the hands of 
the United States Supreme Court.
    Republicans have turned, again, to the Court to try to 
achieve judicially what they cannot achieve legislatively. 
President Trump has vowed that any judge he nominated would 
pass the very strong test, his words, and that they would 
strike down the Affordable Care Act.
    Judge Barrett, in all honesty, you have auditioned for this 
job through your academic writing and judicial opinions, and 
you have passed that test.
    In fact, you have stated twice, in effect, that you would 
have voted to strike down the Affordable Care Act had you been 
a Justice at the time.
    You have been vetted. You have been screened by the Trump 
administration and special interests who want an activist 
judge. They want someone who will legislate from the Bench and 
strike down laws supported by a vast majority of the American 
people, and that activism uses originalism as a smokescreen.
    If the American people have any doubts about how dedicated 
my Republican colleagues are to taking away people's 
healthcare, just listen to their own words. They have been 
remarkably candid and forthright.
    Senator Graham, our Chairman, has said, ``You can't repair 
this monstrosity,'' I am quoting, ``You can't repair this 
monstrosity called Obamacare. You have to tear it down and 
start over.''
    Senator Ernst has said, quote, ``I support immediate action 
to repeal Obamacare and replace it.''
    Senator Cornyn: ``It is time to repeal and replace.''
    Senator Tillis: ``Repeal Obamacare. Let us end this 
disaster.''
    And President Trump himself has said, ``We want to 
terminate Obamacare.''
    Millions of Americans, more than 130 million, have a pre-
existing condition: asthma, heart disease, diabetes, cancer, 
Parkinson's, pregnancy, and now, by the cruelest of ironies, 
COVID-19.
    COVID-19, the cause of this pandemic, now is a pre-existing 
condition that could prevent millions of Americans from being 
covered by healthcare. Stripping healthcare from millions of 
Americans during a pandemic, that is really what is at stake in 
the Republican lawsuit now before the Supreme Court and in this 
nomination.
    And, sadly, it is not just the Affordable Care Act that is 
at stake. It is a woman's right to decide when and how to have 
a family, control over her own body.
    An activist judge on the Bench doing what Congress could 
not do would also strike down common-sense gun safety laws. 
Connecticut has been at the forefront on gun violence 
protection.
    On gun safety, Judge, you acknowledged that your dissenting 
opinion in Kanter sounds kind of radical. That is because it 
is. But if your views on the Second Amendment are adopted by 
the Supreme Court, it would imperil common-sense State laws, 
like Connecticut's, all around the country.
    Today, we ought to be working on improving American 
healthcare. We ought to be fighting COVID-19, which has 
infected 8 million Americans and killed more than 215,000.
    We should be producing a national testing strategy, 
instituting effective contact tracing, and securing sufficient 
PPE. We ought to be providing assistance to the millions of 
Americans who have lost their job and face economic hardship 
and heartbreak.
    President Trump has failed to do any of it. Instead, he and 
our Republican colleagues are riveted on rushing a judge 
through this sham process, dropping everything else.
    President Trump's failure to act will likely lead to 55,000 
additional deaths--55,000 additional Americans lost over just 
the next 3 months.
    Senate Republicans are refusing to address American 
healthcare or COVID-19 or economic relief because they care 
more about putting an extremist, ideological judge on the 
bench, and not just on the Supreme Court.
    I have learned as a Senator that there are very few 
unwritten rules--very few written rules, I should say, in this 
place. But there is one very important unwritten rule: Keep 
your word.
    Republicans have all sorts of excuses for why they are 
breaking their promise, the promise that they would not confirm 
a Supreme Court Justice during an election year. Each excuse 
boils down to nothing more than raw political power.
    They are doing it because they can. But might does not make 
right. They have boasted they have the votes. But they do not 
have the American people and they do not have history on their 
side.
    The American people want a plan to fight and conquer this 
disease. They want a plan to put Americans back to work. They 
want a blueprint for the future, not rolling back rights and 
turning back the clock.
    I revere the Supreme Court. I clerked for Justice Harry 
Blackmun. I have argued cases before the Court four times. Now 
I am really deeply concerned that the Supreme Court is losing 
the trust and respect of the American people.
    The authority of the Supreme Court depends on that trust. 
It has no army or police force to enforce its decisions. The 
American people follow the Supreme Court's commands even when 
they disagree because they respect its authority.
    And now President Trump and the Republican Senators are 
eroding, indeed, destroying that legitimacy. They have stripped 
the American people of their say in this process simply to 
confirm a Justice who will strike down in court, legislate from 
the Bench, what they cannot repeal in Congress.
    Your participation--let me be very blunt--in any case 
involving Donald Trump's election would immediately do 
explosive, enduring harm to the Court's legitimacy and to your 
own credibility. You must recuse yourself.
    The American people are afraid and they are angry, and for 
good reason. It is a break the glass moment. Americans must use 
their voices to speak out and stand up, to contact my 
colleagues on this Committee, despite their boasts about having 
the votes.
    Stand up and speak out to protect their own health, public 
health, and the health of our democracy.
    Thank you, Mr. Chairman.
    Chairman Graham. Thank you, Senator Blumenthal.
    We will now have Senator Tillis, who is with us remotely. 
After his opening statement we will come back at 12:20 and, 
Senator Hirono, you will be the first one to make a statement. 
Senator Tillis.

             OPENING STATEMENT OF HON. THOM TILLIS,
        A U.S. SENATOR FROM THE STATE OF NORTH CAROLINA

    Senator Tillis. Thank you, Chairman Graham, and Ranking 
Member Feinstein.
    I want to take a moment to honor the life and legacy of 
Justice Ginsburg. She was a living legend and a giant in the 
legal world as a professor, as a lawyer, and as a judge, and a 
Justice.
    She was an inspirational model, and role model, and we 
honor her legacy, and I just want to make sure that her family 
knows the Nation mourns her loss.
    But today we are here to consider a nomination of a highly 
qualified jurist to the United States Supreme Court, Judge Amy 
Coney Barrett. She is a top legal scholar, a professor in the 
mold of the late Justice Scalia.
    Her work is widely respected in the legal community and it 
is clear why her former students voted her multiple times to be 
the distinguished Professor of the Year at the Notre Dame Law 
School.
    It is also why every full-time faculty member of Notre Dame 
Law supports her nomination. Her legal work and teaching have 
inspired hundreds of young lawyers, especially aspiring female 
lawyers.
    She is a remarkable mother. She has seven beautiful 
children, and in spite of being busy working as a Seventh 
Circuit judge, she makes time to be involved in her community.
    And this nomination is important because it is going to 
have a lasting impact on our Republic. A Justice's service on 
the Bench involves every important issue facing our 
constitutional Republic.
    What are the limits of abusive and intrusive Government 
power? What is the proper role of each branch of Government? 
And what are the fundamental protections that our Constitution 
grants all Americans?
    These are foundational questions for the Supreme Court and 
they consider them every single term. If confirmed, Judge 
Barrett will be tasked with answering these questions and I 
believe she is going to do a great job.
    But it is not the rights enshrined in the Constitution that 
is most important. It is the structure of the document itself 
that ensures our freedom.
    Justice Scalia understood this. He was fond of saying, ``Every
  dictator in the world, every president for life has a 
Bill of Rights. That is not what makes us free. What makes us 
free is our Constitution. Think of the word `constitution;' it 
means structure.''
    Justice Scalia went on to note, ``The genius of our 
Founding generation is that it disbursed power across multiple 
departments. The real danger to our constitutional Republic is 
centralization of power in any one part of Government. When 
that happens, liberty dies and tyranny reigns.''
    That is why it is critical that Supreme Court Justices 
maintain the proper role. They decide cases. They do not make 
policy.
    In recent decades, the Court has drifted toward a trend 
where it decides majority disputes over policy rather than 
reserving those decisions for the American people through 
acting through their elected representatives, people like those 
of us in the U.S. Senate.
    Article III judges cannot and should not be policymakers. 
We have heard many speak today about policy priorities that 
they would like an activist Court to pass. Several of my 
colleagues have engaged in fear-mongering and described Judge 
Barrett's nomination as an end to healthcare, abortion rights, 
labor rights, and the list goes on and on and on.
    These statements are unfair and they are untrue. This week, 
they will attempt to have Judge Barrett commit to policy 
outcomes rather than do the work for that policy outcome in the 
U.S. Senate.
    Just last month while they were falsely claiming Judge 
Barrett's nomination would bring an end to the protections for 
pre-existing conditions, every single Democrat on this 
Committee voted against the measure that would do just that.
    They are failing to do their job and they want the Court to 
do it for them. My review of Judge Barrett's record convinces 
me she is not only one of the most qualified individuals ever 
to be nominated, but she also understands the proper role of 
the Article III branch.
    She reaches conclusions dictated by the law, not by 
personal preference. That is the right thing to do. My 
Democratic friends decry the nominee has a predetermined 
outcome in mind while in the same breath they demand the 
nominee agree to their preferred outcome of a case.
    The hypocrisy is incredible. They ignore a central fact: 
Judge Barrett's rulings are not meant to be for or against a 
particular policy outcome. She is not a legislator. That is our 
job.
    However, when the Minority cannot get their bad policies 
passed in Congress, they turn to the courts to demand that 
judges interpret the law not as written but as they prefer. Her 
opinions simply order the outcome the law dictates as passed by 
Congress, a politically accountable branch. Nothing more and 
nothing less.
    My Democratic colleagues claim they care about the First 
Amendment, the Fifth Amendment, the Fourteenth Amendment. If 
they care about our constitutional liberties, then they should 
care about confirming a judge who understands the proper role 
of the Supreme Court.
    Rights granted by nine can just as easily be ended by nine. 
To quote Justice Ginsburg, ``Real change, enduring change, 
happens one step at a time. It doesn't happen by judicial 
fiat.''
    Judge Barrett understands that principle. She knows the 
role of a Supreme Court Justice and she is highly qualified to 
do this job.
    Judge Barrett, when I met with you in the Capitol, I asked 
you to sign two pocket Constitutions for my two granddaughters, 
and in it you wrote, ``Dream big.''
    When they are old enough to understand the significance, I 
am going to explain to them that just like Justice Barrett, 
they can, with hard work and determination, realize their 
American dream.
    So for the next few days, when Members of this Committee 
mischaracterize your views, their allies in the liberal media 
are saying terrible things about you and your family, stand 
tall, stand proud, and stand true.
    Rely on your faith. I know that you are an inspiration to 
millions of young women in this country like my granddaughters 
and we are proud of you.
    Thank you, Judge Barrett, for being with us today. 
Congratulations on the recognition of your hard work and your 
character. I look forward to hearing your testimony.
    Thank you, Mr. Chairman.
    Chairman Graham. Thank you, Senator Tillis.
    We will be in recess until 12:20 and we will start back 
with Senator Hirono.
    [Whereupon the Committee was recessed and reconvened.]
    Chairman Graham. The hearing will come to order. Senator 
Hirono.
    [Voice heard off microphone.]
    Chairman Graham. Yes, we should wait on her. I am sorry. I 
apologize.
    [Pause.]
    Chairman Graham. Welcome back, Judge.
    Senator Hirono.

           OPENING STATEMENT OF HON. MAZIE K. HIRONO,
            A U.S. SENATOR FROM THE STATE OF HAWAII

    Senator Hirono. Thank you, Mr. Chairman.
    Judge Barrett, welcome to you and your family. As we say in 
Hawaii, ``Aloha.''
    Mr. Chairman, these are not normal times. Nearly 8 million 
Americans have contracted COVID-19 and, tragically, 215,000 
people and counting have died from this disease, 12.5 million 
Americans are out of work. Tens of thousands more children are 
living in poverty, going hungry because their parents have lost 
their jobs and cannot afford to buy food. Hundreds of thousands 
of small businesses have closed their doors forever, shattering 
dreams and livelihoods.
    The White House has become a COVID-19 hot spot, driven by 
the President's ongoing denial of how serious this pandemic is. 
Not even contracting the virus and being hospitalized seems to 
have shaken him back to reality.
    In normal times, the Senate would be focusing our attention 
on passing legislation to help the millions of Americans 
suffering during this pandemic. But these are not normal times. 
Instead, Senate Republicans are rushing to put a nominee onto 
the Supreme Court to be the deciding vote to take healthcare 
away from millions of people.
    President Trump has been very clear about what he is doing. 
He has repeatedly promised to appoint Supreme Court Justices 
who will strike down the ACA. And by nominating Judge Barrett, 
the President is keeping his promise. In her speech at the 
White House COVID superspreader event 2 weeks ago, Judge 
Barrett aligned herself with her mentor, the late Justice 
Antonin Scalia, who twice voted to strike down the ACA.
    To help the President keep his promise, our Republican 
colleagues are rushing to confirm Judge Barrett in a 
hypocritical, illegitimate process mere weeks before the 
election. They want Judge Barrett seated just in time to hear 
the Republican lawsuit challenging the ACA, a week after the 
election.
    For Americans dealing with this pandemic, it must seem 
outrageous that Donald Trump and Senate Republicans are 
determined to take away their healthcare and are just as 
determined to do nothing to help Americans with a new COVID 
relief bill. And they are right. It is outrageous. But it is 
not surprising. Republicans have made it clear for the past 
decade that repealing the Affordable Care Act is at the top of 
their hit list. We know this because a mere 2 weeks after 
assuming control of the House in 2011, Republicans voted to 
repeal the ACA for the first time. And over the next 6 years--
the next 6 years, Republicans took at least 70 votes--70 votes 
in Congress to eliminate provisions of the ACA or to repeal it 
altogether. These repeal efforts culminated in the early 
morning hours of July 28, 2017, when our late colleague Senator 
John McCain gave his dramatic thumbs down and saved healthcare 
for millions by one vote--his vote.
    Faced with their 70 failures to get rid of the ACA in 
Congress, Republicans have taken to the courts. Right now the 
Trump administration and 18 Republican State Attorneys General, 
including those from Texas, South Carolina, and Missouri, are 
at the Supreme Court right now trying to strike down the ACA. 
Oral arguments in the case are scheduled for November 10th, a 
mere week after election day.
    This latest legal effort has been turbocharged because of 
the death of our champion, Justice Ruth Bader Ginsburg, only 3 
weeks ago. Her death has changed everything for Donald Trump 
and Senate Republicans. They are confident that victory at the 
Supreme Court is now within their grasp if the Senate confirms 
Judge Barrett through this hypocritical, illegitimate process.
    The consequences of Judge Barrett's confirmation will be 
devastating for millions of Americans [a gesture toward the 
display of posters] who would lose their healthcare during this 
pandemic. Even in normal times, without the threat of a 
pandemic, no one in our country should have to confront a major 
illness worried that it might bankrupt their family. But we all 
know these are not normal times.
    Healthcare is the number one concern for so many people in 
our country, and they are rightly terrified that Judge Barrett 
will provide the deciding vote to overturn the ACA and take 
away their healthcare. I want to share two of their stories 
today.
    [Poster is diplayed.]
    Senator Hirono. Kimberly Dickens is from Raleigh, North 
Carolina. Before the Affordable Care Act, Kimberly could not 
afford health insurance. Thankfully, the ACA enabled her to get 
healthcare. She used that coverage to get a checkup and a 
mammogram, which found her breast cancer. With her health 
insurance, she was able to get a mastectomy and has been cancer 
free since. Kimberly credits the ACA for saving her life. She 
said, quote, ``If it was not for the Affordable Care Act, I 
probably would not have had that mammogram. I was diagnosed 
early. It scares me to think, if I did not have insurance, how 
far advanced would the cancer have grown?''
    Kimberly's story is not unique. In the years of all the 
battles of eliminating the ACA, we have heard from hundreds and 
thousands of constituents across the country sharing their 
healthcare stories.
    [Poster is diplayed.]
    Senator Hirono. Dean Ota and his daughter, Jordan, are from 
my home State of Hawaii. Jordan, who is an elementary school 
teacher at Ewa Beach Elementary School, has PNH, a very rare 
blood condition. To treat this condition, she gets infusions of 
a special medicine that costs around $500,000 per year without 
insurance. Dean told me that, quote, ``Without this medicine, 
she will die.'' Dean and Jordan live in fear that Republicans 
will strike down the ACA which would allow her insurance 
company to put lifetime caps on her benefits, and she would be 
left without coverage for her life-saving medication. Dean 
wrote to me to share how, quote, ``extremely terrified'' he is 
about his daughter losing access to adequate healthcare under 
the ACA. He has asked me to fight for her, and that is what I 
am doing today.
    Healthcare is personal to Kimberly, Dean, Jordan, and it is 
personal to me, too, because I know that having health 
insurance and access to healthcare saved my life. On the day 
when the Senate confirmed Neil Gorsuch to the Supreme Court, I 
got a routine chest X-ray before scheduled eye surgery. A 
shadow on that X-ray and a later scan led to my diagnosis of 
stage 4 kidney cancer and gave me time to receive treatment. My 
diagnosis came as a total shock, and I am grateful it came when 
there was still time. I still have cancer, but I do not need 
any treatment right now. I receive regular scans so that I will 
know in time if treatment becomes necessary again.
    I am grateful for the care I have received and continue to 
receive from my doctors. The cost of my treatment, which 
included surgery to remove a kidney, a second surgery to remove 
part of a rib replaced with a 7-inch titanium plate, almost 2 
years of cutting-edge immunotherapy, and regular scans, has 
been enormous. It would bankrupt almost every family in this 
country if they did not have health insurance.
    I am not special or unique. Serious illness can hit anyone 
unexpectedly. It did for me. And when it does, no one should 
have to worry about whether they can afford care that might 
save their life.
    The Affordable Care Act provided this peace of mind for so 
many people over the years who found themselves in positions 
similar to mine. Their lives and their health are what is at 
stake. Their lives are what is at stake with this nomination. 
And at moments like this, where the healthcare of millions is 
on the line, I think back to the care and concerns so many of 
you showed me when I was diagnosed with cancer 3\1/2\ years 
ago. So many of you, including many of my Republican colleagues 
on this Committee, wrote heartfelt notes wishing me well and 
letting me know you were thinking of me. And to this day, when 
the Chairman of this Committee and I find ourselves away from 
the cameras or sharing an elevator, he never hesitates to ask 
me about my health. He says, ``How are you doing?''
    Mr. Chairman, you and I have had our pointed disagreements 
over the years, particularly during our time together on this 
Committee, but your concern means a lot to me. Moments when we 
recognize our shared humanity are rare in Congress these days. 
But this can and should be one of those moments. This can be a 
moment, Mr. Chairman, for you and your Republican colleagues to 
show the American people, terrified about losing their 
healthcare, the same care and compassion you showed me, and 
continue to show me, when I was diagnosed with cancer. Instead 
of rushing to jam another ideologically driven nominee onto the 
Supreme Court in the middle of an election when over 9 million 
Americans have already voted, Mr. Chairman, let us end this 
hypocritical, illegitimate hearing, return to the urgent work 
we have before us to help those suffering during this pandemic.
    Thank you, Mr. Chairman.
    Chairman Graham. Thank you, Senator Hirono. I think it is 
not just me. I think everybody on this Committee and everybody 
that knows you knows you are passionate about your causes. We 
have a lot of political differences, but all of us are very 
encouraged to hear that you are doing well, and we will keep 
praying for you. You are an asset to the Senate.
    Senator Hirono. I appreciate that. Thank you. Do the right 
thing.
    Chairman Graham. Okay. Senator Ernst.
    Senator Hirono. Aloha.
    Chairman Graham. Aloha. Senator Ernst.

             OPENING STATEMENT OF HON. JONI ERNST,
             A U.S. SENATOR FROM THE STATE OF IOWA

    Senator Ernst. Thank you, Mr. Chair. And, Judge Barrett, 
thank you so much for being in front of us today. Welcome to 
you and, of course, I am so glad that you have had your family 
join you today as well.
    Only 100 years ago, women in this country were given the 
right to vote, and today we consider adding another woman to 
the highest court in the land, and I cannot help but be so 
proud of all that every one of our women have accomplished in 
this incredible Nation.
    This is the first time that I have been a Member of the 
Judiciary Committee during a Supreme Court nomination process, 
and as you probably know, like most Americans, I am not a 
lawyer. I bring a slightly different perspective onto this 
Committee. But one thing is very important to me, and it is 
something that matters to Iowans, whether they are lawyers or 
not. I firmly believe in the role of our Supreme Court. It is 
the defender of our Constitution. At the end of the day, that 
is my test for a Supreme Court Justice. Will you defend the 
Constitution?
    It frustrates me and it frustrates my fellow Iowans that 
the Supreme Court has become a super-legislature for a Congress 
that, frankly, will not come together, discuss these tough 
issues, and do its job.
    What I hear from my colleagues on the left is about 
judicial activism and what they want to see in their nominees, 
which is that super-legislature. They are projecting that upon 
you, Judge Barrett. That is what they are projecting as they 
talk about what cases may or may not come in front of the 
Supreme Court. Matter of fact, I think it was just the other 
day that Vice President Joe Biden told the American people they 
do not deserve to know whether he is going to pack the court. 
They do not deserve to know who his judicial nominees would be. 
I think we do need to know, again, because it is what the left 
is projecting on you today--is what they want to see in their 
nominees. But that is not what our Founders intended the Court 
to be.
    I hope that this hearing will be an open, fair conversation 
about how Judge Barrett would be as Justice Barrett. I am 
concerned, however, that not everyone involved in this hearing 
shares that goal. We have already seen hints in that over the 
past few weeks, immediately attacking your faith and your 
precious family. Instead of entering into this nomination 
process with an open mind and a desire to understand this woman 
who has been nominated for the highest court in the land, the 
focus is on a plan or a strategy, a series of tactics to 
undermine, coerce, and confuse the American people--a plan, 
Judge Barrett, to undermine you as a person, undermine your 
family, and undermine what you hold dear.
    Women all over the world are painfully familiar with this 
strategy. We are all too often perceived and judged based on 
who someone else needs or wants us to be, not on who we 
actually are. I cannot speak for those that would attempt to 
undermine your nomination, but as a fellow woman, a fellow mom, 
a fellow Midwesterner, I see you for who you are, and I am glad 
the American people have the opportunity to get to know Amy 
Coney Barrett.
    This week will be an opportunity to dig into your 
background further and understand more about your judicial 
philosophy. But what your political opponents want to paint you 
as is a TV or cartoon version of a religious radical, a so-
called ``handmaid'' that feeds into all of the ridiculous 
stereotypes they have set out to lambaste people of faith in 
America. And that is wrong.
    It might be less comical if this was the first time the 
left has trotted out this partisan playbook. Your political 
opponents have made these types of religious attacks on nearly 
every Supreme Court candidate nominated by a Republican 
President in the modern era. And every time, like clockwork, 
they say they really mean it this time, this nominee, this 
woman in front of us, she is the absolute worst.
    I am struck by the irony of how demeaning to women their 
accusations really are. That you, a working mother of seven, 
with a strong record of professional and academic 
accomplishment, could not possibly respect the goals and 
desires of today's women. That you, as a practicing Catholic, 
with a detailed record of service, lack compassion. I know you 
to be compassionate. Your record on the Seventh Circuit says 
that you are. And, more importantly, it shows that your 
demonstrated commitment is to defending the Constitution.
    The great freedom of being an American woman is that we can 
decide how to build our lives, whom to marry, what kind of 
person we are, and where we want to go. I served in the Army, 
something not exactly popular at various points in America's 
history. We do not have to fit the narrow definition of 
``womanhood.'' We create our own path.
    Justice Ginsburg was one such woman, and I would like to 
pay tribute to her for what she did to pave the way for women 
of today. It is really quite simple what your opponents are 
doing. They are attacking you as a mom and a woman of faith 
because they cannot attack your qualifications.
    Every year, I travel to every single one of Iowa's 99 
counties and talk to men and women from all walks of life. 
Whether they are farmers or nurses or small business owners, 
they want a Government that is accountable to them. When 
Congress makes a law that oversteps the Constitution, the 
ripples can be felt, whether it is on farms in Montgomery 
County, where I am from, and the manufacturing facilities of 
Dubuque. It can be felt in the church services of Sioux City 
and the community meetings in Waterloo.
    The Supreme Court's only job is to rule on the cases before 
it and defend the Constitution. To do that well, a Justice 
needs to be thoughtful, restrained, and wise. Judge Barrett, so 
far I have seen all of those things in you. I am so glad that 
we have you in front of us. I look forward to learning more 
about you. I want to thank you and your family for being in 
this nomination today. And certainly, this, folks, is what a 
mom can do. Thank you, Judge Barrett, very much.
    Thank you, Mr. Chair.
    Chairman Graham. Senator Booker.

           OPENING STATEMENT OF HON. CORY A. BOOKER,
          A U.S. SENATOR FROM THE STATE OF NEW JERSEY

    Senator Booker. Thank you, Mr. Chairman.
    [Poster is displayed.]
    Senator Booker. Behind me, Merritt Bowman is a 49-year-old 
father of twin boys, which you can see, and a football coach 
and paraprofessional at Deptford High School in New Jersey. For 
years, Merritt put off going to the doctor because he was, like 
many Americans, afraid he could not afford it. But when the 
Affordable Care Act was passed, he finally got the coverage he 
could afford.
    Four years ago, after not feeling well, Merritt made the 
doctor's appointment and was diagnosed with Type 2 diabetes, a 
disease that affects over 10 percent of Americans and 
disproportionately impacts Black Americans like Merritt, who 
are 60 percent more likely to be diagnosed with diabetes and 
twice as likely to die from it.
    Today, Merritt takes insulin and other medications, and his 
condition has thankfully improved. Merritt said, and I quote, ``Obamacare
made it so I was not afraid of the cost of going to 
the doctor. If I did not have insurance and did not get it 
diagnosed, who knows where I would be right now?''
    But Merritt is worried about what will happen if the 
Affordable Care Act gets overturned. He said, and I quote, 
``Now I have a pre-existing condition. My insurance covers my 
medications, my equipment to monitor my diabetes. If that is 
taken away from me, what is going to happen? I cannot afford 
those on my own.''
    [Poster is displayed.]
    Senator Booker. Michelle Lewris from Palisades Park, New 
Jersey, lost her husband, John, last year when he passed away 
suddenly at the age of 58. Michelle relied on health insurance 
through John's job, but when he died, their insurance went 
away. She was given the option to continue his plan, but she 
could not afford the cost of $800 a month. So Michelle signed 
up for coverage on the insurance Marketplace, where she 
qualified for a subsidy that made it more affordable. Today she 
is insured, and she can manage her diabetes, heart disease, and 
an autoimmune disease because of her coverage. Like Merritt, 
Michelle also relies on insulin and other prescription 
medications. If the ACA was overturned, Michelle said, quote, 
``I could lose my house. If I did not have affordable 
healthcare, I would have to sell my home. I like where I live. 
I do not want to lose my home.''
    People like Merritt and Michelle are understandably scared 
right now. President Trump has told America he would end the 
ACA. He promised explicitly that he would only nominate judges 
that would do the right thing and eliminate the Affordable Care 
Act. People like Merritt and Michelle know what a future 
without the ACA looks like. It looks like 130 million Americans 
with pre-existing conditions, from cancer survivors to people 
with disabilities being charged more or denied coverage 
completely. It looks like 20 million Americans losing their 
access to potentially life-saving care in the middle of a 
pandemic that has already killed over 214,000 Americans. In New 
Jersey, we have lost over 16,000 people to COVID-19--595,000 
people would lose their coverage without the ACA.
    For millions of Americans, a future without the ACA looks 
like being forced to sell your house if you cannot afford your 
healthcare. It looks like not having access to a doctor when 
you are sick. It looks like having to choose between paying for 
groceries and paying for medicine.
    And people are scared right now for another reason: Because 
they know what a future without the protections of Roe v. Wade 
looks like because President Trump has explicitly stated that 
he would only put up Supreme Court nominees that would overturn 
Roe v. Wade. He said it clearly. We should believe him. And 
that without Roe v. Wade, our country looks like people being 
denied the ability to make decisions about their own bodies, 
not just while they are pregnant but being stripped of the 
right to plan for their futures. It looks like women of color, 
low-income women, and women living in rural areas who cannot 
just pack up and leave if abortion is restricted or 
criminalized where they live, it looks like them being left 
with no options. It looks like State laws proliferating 
throughout our country that seek to control and criminalize 
women. It looks like the Government interfering with women 
making the most personal medical decisions. It looks like a 
country in which States may write laws that could subject women 
who have miscarriages to investigations to ensure they did not 
have abortions.
    In America today, people are scared. You have heard from my 
colleagues. We are getting calls to our office where people are 
afraid. More than 214,000 Americans have died, many of them 
isolated and alone, away from friends and families. Tens of 
millions of jobs have been lost. One in three American families 
with children are not getting enough food to eat. More than 
100,000 small businesses have closed permanently. Lines at food 
banks in the wealthiest Nation on the planet have stretched for 
miles.
    We could be, as the Senate--we should be, as the Senate, 
working in a bipartisan way to try to get this virus under 
control, to get relief to people who are hurting, who are 
struggling, who are afraid, to help people who are unemployed, 
to let doctors and nurses and hospital staffs putting their 
lives on the line right now in State after State where COVID is 
rising know that we have their backs in a pandemic. But instead 
of doing anything to help people who are struggling right now, 
we are here. We are here.
    I am so glad, I am really glad that my colleagues who 
contracted COVID-19 at the Rose Garden superspreader event for 
Judge Barrett had access to the care that you and your families 
needed. That is right. This is a blessing. The problem is the 
people who will come through here today to wipe down the desks 
and empty the garbage, that will vacuum the floor. Like people 
all over our country who are working today in factories, 
teaching children in schools, they do not have direct line to 
the Nation's top health experts. They cannot show up to work 
sick, and they might not have space to distance themselves at 
home to protect their families.
    We literally stopped the Senate from functioning, with the 
exception of this hearing. That is why we are here. We are not 
just 22 days from an election. We are in the middle of an 
ongoing election when millions of people have already started 
voting because Donald Trump and most of my Senate Republican 
colleagues know the truth. They will not be able to get away 
with this after the American people have spoken in this 
election.
    Donald Trump and my Senate Republican colleagues in this 
room today know that the American people do not want the ACA 
overturned. Donald Trump and my Senate Republican colleagues 
know that the majority of Americans actually do not want Roe v. 
Wade overturned, that the majority of Americans do not want to 
see abortion criminalized in our States. But that is exactly 
why we are here today, because Donald Trump and Senate 
Republicans know that the American people do not want this, so 
they have to act now. They do not trust the American people, 
which is so painful because that is what they said. They said 
we should trust the American people and what the American 
people say under President Obama 269 days from an election. And 
then after that election, they tried time and time again to 
overturn the Affordable Care Act. But a handful of Republicans 
stopped them. You see, they tried in the Senate, they tried in 
the House--over 70 attempts to rip down the Affordable Care 
Act. But now Donald Trump has said explicitly he is going to do 
it through the courts by making the nomination we see here 
today. That is why we are here. The American people should know 
that that is what this is all about, rushing this nomination 
through to sit a Supreme Court Justice in time to hear a case 
before the Supreme Court that will end the Affordable Care Act.
    We are here because in the middle of a deadly pandemic, in 
the middle of an ongoing election, Senate Republicans have 
found a nominee in Judge Barrett who they know will do what 
they could not do: Subvert the will of the American people and 
overturn the ACA and overturn Roe v. Wade. That is what this is 
about. That is why we are here. It is very simple.
    Senate Republicans know the American people do not want 
this, but they do not care because they have only one small 
window of opportunity to work the system, betray what the 
American people want. And so they are desperately rushing to 
complete this process before America starts voting. But they do 
not have to do this. If one of my colleagues will stand up on 
this Committee, we can hold this over until after an election. 
If two of my colleagues on the Senate floor agree with their 
other two colleagues, Republicans, we can stop this. Otherwise, 
this is a charade when they say this is a normal Judiciary 
Committee hearing for a Supreme Court nomination. There is 
nothing about this that is normal. It is not normal that Senate 
Republicans are rushing through a confirmation hearing, 
violating their own words, their own statements, betraying the 
trust of the American people and their colleagues and failing 
to take in this hearing even the most basic safety protections 
to protect people around them--all to ensure that tens of 
millions of people will lose their healthcare when we are 7 
months into one of the worst public health crises in the 
history of our country.
    It is not normal. This is not normal that millions of 
Americans like Michelle and Merritt are not just scared of a 
deadly virus. They are scared of their fellow Americans who are 
sitting in this room right now. They are scared that their 
Government and their institutions will be manipulated by people 
who could not work through the democratic process to take away 
their healthcare and are trying an end run to achieve that.
    Nothing about this today is normal. This is not normal. 
What is going on in America today in the midst of a deadly 
pandemic, in an ongoing election, having a rushed Supreme Court 
nomination hearing is not normal, and we cannot normalize it. 
People are voting right now. The American people should decide. 
The American people should decide. The American people should 
decide.
    I will not be voting to confirm Judge Barrett's nomination.
    Chairman Graham. Thank you. Senator Crapo.
    Senator Booker. I would like to submit a letter for the 
record, if I may.
    Chairman Graham. Without----
    Senator Booker. We should not be rushing, as I said, this 
process, and my colleagues agree with me that we should be 
working to protect the health and safety of Americans across 
the country and taking the precautions, greater precautions in 
this workplace. I would like to enter into the record a letter 
from Senator Leahy, Senator Harris, and myself that we sent to 
the Chairman last week asking that these hearings not proceed 
without proper testing measures, without all of us being 
tested, and a COVID safety protocol being put into place.
    Chairman Graham. Thank you. Without objection.
    [The information appears as a submission for the record.]
    Chairman Graham. Senator Crapo.

             OPENING STATEMENT OF HON. MIKE CRAPO,
             A U.S. SENATOR FROM THE STATE OF IDAHO

    Senator Crapo. Thank you, Mr. Chairman. And, Judge Barrett, 
welcome and congratulations on the high honor of your 
nomination.
    I have some prepared remarks here which I will give, but 
having sat through the speeches that I have heard already and 
listened to the attacks that have been made, both on Republican 
Members of the Committee and on you, I think it is important to 
just set the record straight on a few items before I then talk 
about why we are here, and that is you and your qualifications 
to serve as a Justice.
    So, what were the attacks? I would say the first one is 
that we are rushing too fast and that we are violating the 
rules and norms and precedents of the Senate and speeding into 
these proceedings.
    What are the facts? Well, I had my staff check while we 
were sitting here. This hearing is 16 days after Judge 
Barrett's announced nomination. More than half of all Supreme 
Court hearings have been held within 16 days of the 
announcement of the nominee. This case is no different.
    A couple of examples: Justice Stevens, 10 days; Justice 
Rehnquist, 13 days; Justice Powell, 13 days; Justice Blackmun, 
15 days; Justice Burger, 13 days.
    These proceedings are following right along in the same 
kind of process that has historically been the process of the 
Senate.
    So, then the argument is made that, well, this is an 
election year, and the Republicans said back in 2016 that in an 
election year they would not move forward with then-President 
Obama's nomination.
    What are the facts? A vacancy has occurred in a 
Presidential election year 29 times. Every single one--and this 
is important to note. Every single one of those 29 times, 
whoever was the sitting President made a nomination to fill the 
vacancy. Every one of those 29 times. Nineteen of those 29 
times, the parties of the President and the Senate Majority 
were the same, and 17 of those 19 nominees were confirmed.
    By contrast, of the 10 times in which the Senate was 
controlled by the party opposite to the President, only one 
time did the Senate that was not of the party of the President 
proceed to fill that vacancy. In fact, vacancies under a 
divided Government, meaning a Senate and a Presidency from 
different parties, have not been filled for over 130 years, 
going back to 1888.
    So, much like when the Senate exercised its constitutional 
right fully consistent with precedent in 2016 not to fill the 
vacancy when there was divided Government, the Senate is today 
exercising its duty to move forward with processing this 
nomination just like the vast majority of Senates in the past 
have done every time this has happened, and it is important to 
note that. Any claim that this process is unusual or that it 
violates the clear precedent of the Senate is simply false.
    So then, back to the attacks on the Members of this 
Committee on the Republican side and, frankly, against the 
President, it says that we are trying to engage in court-
packing. Now, that is novel because it is actually the Senate 
following standard procedure with regard to a vacancy that is 
now being accused of being court-packing when my colleagues on 
the other side are actually proposing court-packing--that is, 
to statutorily and with the signature of a President change the 
law so that they can add more members to the Court. FDR tried 
this, and his effort was rejected. That effort should be 
rejected now. But let us be clear about it. This is not court-
packing. That, threatening to pass a law and change the Court, 
is court-packing.
    So, then what were the arguments that were actually leveled 
against Judge Barrett? Well, the standard arguments. She is 
going to overturn all protections for women. She is going to 
change all of the laws in the country that protect people's 
healthcare. And everyone in this country who has a pre-existing 
condition or has any kind of a worry about getting support 
needs to worry that she is going to be an activist judge--a 
Justice, and go in there and change the law.
    She is not, and we all know that. This is simply the tired, 
worn-out argument that is constantly made every time a 
Republican President nominates a candidate for the Bench, for 
the Supreme Court of the United States. And it has never been 
true, and it will not be true with Judge Barrett.
    So then the attack is, well, the Republicans do not care 
about people's health. They will not even try to get COVID 
relief out. We are here in a hearing in the Judiciary Committee 
when we ought to be passing COVID relief legislation. And I 
have heard several of my colleagues basically say the 
Republicans are refusing to work on helping to address the 
COVID crisis. This coming from colleagues who just a month or 
so ago voted unanimously to filibuster a $500 to $600 billion 
COVID relief package in the Senate, a COVID relief package--I 
asked my staff to get me a quick summary of it--that put, as I 
indicated, somewhere between $500 and $600 billion into more 
small business loans; unemployment insurance; agriculture and 
farming assistance; Postal Service assistance; education 
assistance, both at the higher education levels and at K 
through 12; healthcare assistance for pandemic preparation; for 
strategic stockpiles, for testing, for contact tracing; 
billions for vaccine and therapeutic and diagnostic 
development. And the list goes on. We were stopped from 
proceeding with this legislation by a filibuster of those who 
now accuse us of not wanting to try to do something. We stand 
ready if you will simply let us go to the legislation and pass 
it.
    So now, Judge Barrett, let me talk about you. Judge, you 
have an exemplary academic record and legal credentials, and 
you are preeminently qualified to serve on our Supreme Court. 
Following your graduation from law school, you clerked for both 
the U.S. Court of Appeals for the District of Columbia and the 
U.S. Supreme Court. At the Supreme Court you clerked, as 
everyone knows, for none other than the late Justice Antonin 
Scalia.
    Upon receiving your nomination to the Supreme Court, Judge 
Barrett reflected on her clerkship for Justice Scalia citing 
his ``incalculable influence'' on her life. She also stated 
that his judicial philosophy is hers, too, and that a judge 
must apply the law as written. That is what we need in our next 
Supreme Court Justice rather than the activist Justice that you 
are being accused of being. Judges are not policymakers, and 
they must be resolute in setting aside policy views that they 
may hold. I know you know that.
    Should we not take Judge Barrett at her word? As a judge, 
Supreme Court or otherwise, she must be dedicated to 
interpreting the law as written with an unparalleled commitment 
to our Constitution. I have visited with her privately. I have 
reviewed her record. I have seen nothing that would indicate 
that she is not telling the truth when she says that is her 
view of how a judge should conduct herself.
    I have met with a number of Supreme Court nominees in my 
service in the Senate, and throughout I have continued to 
maintain an emphasis on following the law and upholding our 
Constitution, and that that must be a central characteristic of 
the Justices we select for this highly influential part of our 
Government.
    Judges have a great responsibility to carefully exercise 
their authority within the limits of the law. Our court system 
has the responsibility to preserve our constitutional rights, 
ensure a limited Government, and provide speedy and fair 
justice.
    Following her clerkships, Judge Barrett spent time in 
private practice before beginning her tenure as a professor. 
Her academic scholarship and lengthy analysis of issues facing 
the Federal courts make her uniquely well qualified to serve on 
our Nation's highest court. In particular, Judge Barrett's 
thoughtful exploration of precedent and the doctrine of stare 
decisis demonstrates that she is both intellectual and 
deliberative in her understanding of the law. Moreover, it is 
evident that she understands the role of a fair and proper 
judge.
    In September 2017, Judge Amy Coney Barrett came before the 
Senate Judiciary Committee, this Committee, after being 
nominated to the U.S. Circuit Court of Appeals for the Seventh 
Circuit. During that hearing she repeatedly expressed her 
commitment to independent and unbiased decision-making. I was 
proud to support her confirmation to the court of appeals in 
both the Committee and on the Senate floor. Judge Barrett's 
remarkable resume shows she is a pioneer in the legal field. 
She will be the fifth woman and the first mother of school-aged 
children to serve on the Supreme Court. In many ways she is the 
ideal candidate to fill this current vacancy.
    Mr. Chairman, I look forward to hearing more from the 
nominee about her experience and her judicial philosophy. The 
next few days will prove invaluable as we discuss with Judge 
Barrett, at length, the proper role of a judge in our legal 
system. I look forward to this hearing.
    Thank you, Mr. Chairman.
    Chairman Graham. Thank you.
    I believe Senator Harris----
    Senator Harris. Can you hear me?
    Chairman Graham. Yes, hello.
    Senator Harris. Hello?
    Chairman Graham. We hear you.
    Senator Harris. Mr. Chairman, this hearing----
    Chairman Graham. Senator?
    Senator Harris. Yes.
    Chairman Graham. Just wait one second, we don't see you.
    Senator Harris. Of course. You do not see me?
    Chairman Graham. One, congratulations on being on the 
ticket. I told you that. There we go--all right.
    Senator Harris. Can you see me now, Mr. Chairman?
    Chairman Graham. I see you, I hear you. The floor is yours.

          OPENING STATEMENT OF HON. KAMALA D. HARRIS,
          A U.S. SENATOR FROM THE STATE OF CALIFORNIA

    Senator Harris. Okay. I appreciate it. Thank you, Mr. 
Chairman.
    This hearing has brought together more than 50 people to 
sit inside of a closed-door room for hours while our Nation is 
facing a deadly airborne virus. This Committee has ignored 
common-sense requests to keep people safe, including not 
requiring testing for all Members, despite a coronavirus 
outbreak among Senators of this very Committee.
    By contrast, in response to this recent Senate outbreak, 
the leaders of Senate Republicans rightly postponed business on 
the Senate floor this week to protect the health and safety of 
Senators and staff. Mr. Chairman, for the same reasons this 
hearing should have been postponed. The decision to hold this 
hearing now is reckless and places facilities workers, 
janitorial staff, and congressional aides and Capitol Police at 
risk--not to mention that while tens of millions of Americans 
are struggling to pay their bills, the Senate should be 
prioritizing coronavirus relief and providing financial support 
to those families.
    The American people need to have help to make rent or their 
mortgage payment. We should provide financial assistance to 
those who have lost their job and help parents put food on the 
table. Small businesses need help as do the cities, towns, and 
hospitals that this crisis has pushed to the brink.
    The House bill would help families and small businesses get 
through this crisis, but Senate Republicans have not lifted a 
finger for 150 days, which is how long that bill has been here 
in the Senate, to move the bill. Yet this Committee is 
determined to rush a Supreme Court confirmation hearing through 
in just 16 days.
    Senate Republicans have made it crystal clear that rushing 
a Supreme Court nomination is more important than helping and 
supporting the American people who are suffering from a deadly 
pandemic and a devastating economic crisis. Their priorities 
are not the American people's priorities. But for the moment, 
Senate Republicans hold the Majority in the Senate and 
determine the schedule, so here we are.
    The Constitution of the United States entrusts the Senate 
with the solemn duty to carefully consider nominations for 
lifetime appointments to the United States Supreme Court. Yet 
the Senate Majority is rushing this process and jamming 
President Trump's nominee through the Senate while people are 
actually voting, just 22 days before the end of the election. 
More than 9 million Americans have already voted, and millions 
more will vote while this illegitimate Committee process is 
underway. A clear majority of Americans want whoever wins this 
election to fill this seat, and my Republican colleagues know 
that. Yet they are deliberately defying the will of the people 
in their attempt to roll back the rights and protections 
provided under the Affordable Care Act.
    And let us remember, in 2017 President Trump and 
congressional Republicans repeatedly tried to get rid of the 
Affordable Care Act. But, remember, people from all walks of 
life spoke out and demanded Republicans stop trying to take 
away the American people's healthcare.
    Republicans finally realized that the Affordable Care Act 
is too popular to repeal in Congress, so now they are trying to 
bypass the will of the voters and have the Supreme Court do 
their dirty work. That is why President Trump promised to only 
nominate judges who will get rid of the Affordable Care Act.
    This administration, with the support of Senate 
Republicans, will be in front of the Supreme Court on November 
10th to argue that the entire Affordable Care Act should be 
struck down. That is in 29 days that that will happen. And that 
is a big reason why Senate Republicans are rushing this 
process. They are trying to get a Justice onto the Court in 
time to ensure they can strip away the protections of the 
Affordable Care Act. And if they succeed, it will result in 
millions of people losing access to healthcare at the worst 
possible time: in the middle of a pandemic.
    Twenty-three million Americans could lose their health 
insurance altogether. If they succeed, they will eliminate 
protections for 135 million Americans with pre-existing 
conditions like diabetes and asthma, heart disease, or cancer--
a list that now will include over 7 million Americans who have 
contracted COVID-19. Insurance companies could deny you 
coverage or could sell you a plan that will not pay a dime 
toward treating anything related to a pre-existing condition. 
If the Affordable Care Act is struck down, you will have to 
once again pay for things like mammograms and cancer screenings 
and birth control. Seniors will pay more for prescription 
drugs, and young adults will be kicked off of their parents' 
plans.
    And these are not abstract issues. We need to be clear 
about how overturning the Affordable Care Act will impact the 
people we all represent--for example, Myka, who is 11 years 
old, and she lives in Southern California.
    [Photograph is displayed.]
    Senator Harris. So, Myka enjoys being a Girl Scout and ice 
skating and reading and eating pasta and baking. Her mother 
says the only reason Myka is able to live her life as she does 
now is because the Affordable Care Act guarantees that her 
health insurance cannot deny her coverage or limit her care 
because it is too expensive. You see, Myka has a congenital 
heart defect. She goes to multiple specialists throughout the 
year and gets an MRI with anesthesia every 6 months. At just 11 
months old, Myka's family had already hit $50,000 in medical 
expenses, and her biannual MRI costs were $15,000 a session. 
And so--correction, by 11 months old, her family had hit 
$500,000 in medical expenses.
    If Republicans succeed in striking down the Affordable Care 
Act, insurance companies will be able to deny coverage for 
children with serious conditions, children like Myka. And 
parents? Well, they will be on their own. No one should face 
financial ruin to get their child or their spouse or their 
parent the care they need, and no family should be kept from 
seeing a doctor or getting treatment because an insurance 
company says that the treatment is too expensive.
    In America, access to healthcare should not be determined 
based on how much money you have. Healthcare and access to 
healthcare should be a right. Myka and millions of others who 
are protected by the Affordable Care Act know this is 
fundamentally what is at stake with this Supreme Court 
nomination.
    And, of course, there is more at stake. Throughout our 
history, Americans have brought cases to the United States 
Supreme Court in our ongoing fight for civil rights, human 
rights, and equal justice--decisions like Brown v. Board of 
Education, which opened up educational opportunities for Black 
boys and girls; Roe v. Wade, which recognized a woman's right 
to control her own body; Loving v. Virginia and Obergefell v. 
Hodges, which recognized that love is love and that marriage 
equality is the law of the land.
    The United States Supreme Court is often the last refuge 
for equal justice when our constitutional rights are being 
violated. Justice Ruth Bader Ginsburg devoted her life to fight 
for equal justice, and she defended the Constitution. She 
advocated for human rights and equality. She stood up for the 
rights of women. She protected workers. She fought for the 
rights of consumers against big corporations. She supported 
LGBTQ rights, and she did so much more. But now her legacy and 
the rights she fought so hard to protect are in jeopardy. By 
replacing Justice Ruth Bader Ginsburg with someone who will 
undo her legacy, President Trump is attempting to roll back 
Americans' rights for decades to come.
    Every American must understand that with this nomination 
equal justice under law is at stake. Our voting rights are at 
stake. Workers' rights are at stake. Consumer rights are at 
stake. The right to a safe and legal abortion is at stake. And 
holding corporations accountable is at stake. And, again, there 
is so much more.
    So, Mr. Chairman, I do believe this hearing is a clear 
attempt to jam through a Supreme Court nominee who will take 
healthcare away from millions of people during a deadly 
pandemic that has already killed more than 214,000 Americans. I 
believe we must listen to our constituents and protect their 
access to healthcare and wait to confirm a new Supreme Court 
Justice until after Americans decide who they want in the White 
House. Thank you.
    Chairman Graham. Thank you, Senator Harris. Senator 
Kennedy.

            OPENING STATEMENT OF HON. JOHN KENNEDY,
           A U.S. SENATOR FROM THE STATE OF LOUISIANA

    Senator Kennedy. You have a beautiful family, Judge.
    We claim you in Louisiana. We are proud of the fact in 
Louisiana that you were born in Metairie, a suburb of New 
Orleans. We are proud of the fact that you got a solid 
education at St. Mary's Dominican High School. Come back and 
visit us. I know your mom and dad still live there, and we are 
very proud of you and your career.
    This is a solemn occasion, as it should be. I cannot think 
of another position, at least not a position that is for life, 
not a position in which the occupant is not elected by the 
people, that is more powerful, at least not in the Western 
world, than an Associate Justice of the Supreme Court. And this 
process is not supposed to be the Big Rock Candy Mountain. Our 
job is to advise and consent, and that is one way of saying 
that we are supposed to make sure that the President has not--
whatever President makes the nomination, has not made a 
mistake. And we all, as you can see, take that job seriously, 
as you can see, and we know you respect that. That is why I 
think over the next several days it is appropriate for us to 
talk about your intellect, which is obvious, by the way, and 
your temperament, your character, and your judicial philosophy. 
And I hope we can talk about something else, and that is the 
role of the Federal judiciary in American life.
    Now, look, Judge, I am not naive. I understand this thing 
can turn sour real fast. We all watched the hearings for 
Justice Kavanaugh. It was a freak show. It looked like the 
cantina bar scene out of ``Star Wars.'' And I know for someone 
unaccustomed to it that it hurts to be called a racist. I think 
it is one of the worst things you can call an American.
    I know that it hurts to be called a white colonialist. And 
I know it must hurt for someone of deep Christian faith like 
yourself to be called a religious bigot, and to have it implied 
that because you are a devout Christian, that you are somehow 
unfit for public service. Before it is over with, they may call 
you ``Rosemary's Baby,'' for all I know. I hope not.
    And I know, as we have seen this morning, I know you think 
it is unfair--it is unfair for my colleagues to suggest, some 
overtly, some more indirectly, that if you are put on the 
United States Supreme Court, you will be on a mission from God 
to deny healthcare coverage for pre-existing conditions for 
every American. I know that seems preposterous to you, and it 
seems that way because it is.
    Take comfort in the fact that the American people, some of 
my colleagues disagree with this statement, they believe in 
Government. I believe in people. The American people are not 
morons. They can see drivel when they see it, and they can 
appreciate it when they see it for being what it is.
    Now, let me turn to what I hope quickly we can talk about 
today. Americans love democracy. We will even fight for it. And 
we have. And that is a wonderful thing. It is an important 
thing in today's world as this world becomes more 
authoritarian. And our Founders--but we do not have a pure 
democracy. As a columnist I read this morning said, when we 
have to decide a complex issue dealing with social norms or 
economic issues, we do not all put on a toga and go down to the 
forum and vote. We have elected representatives. Those are 
Members of Congress. And it is our elected representatives' job 
to decide social and economic policy. And if we do not like 
what they do, they are accountable. We vote them out.
    But in the last 50 years, certainly in the last 25, the 
United States Congress, either voluntarily or involuntarily, 
has ceded a lot of its power to the executive branch and to the 
Federal judiciary. When I say the executive branch, I am not 
necessarily talking about the President. I am talking about the 
administrative state--the ``bureaucracy,'' as some call it. It 
is this giant row beast that enjoys power now that only kings 
once enjoyed. Members of the administrative state write their 
own laws, they interpret their own laws, they litigate their 
own laws in their own courts before judges that they appoint. 
And Congress has allowed that to happen.
    I think Congress has also abdicated a lot of power to the 
Federal judiciary. I do. And I am not saying that Federal 
judges do not make law. Of course, they make law. They make law 
in the context of a specific case. It is called ``judicial 
precedent.'' But our Founders intended Federal judges to 
exercise judicial restraint and to understand the special role, 
scope, and mission of the Federal judiciary, vis-a-vis the 
United States Congress.
    I do not think our Founders intended judges to be 
politicians in robes. I think our Founders intended judges, 
Federal judges, to tell us what the law is, not what the law 
ought to be.
    I think our Founders intended, as the Chief Justice put it, 
I think our Founders intended Federal judges to call balls and 
strikes. I do not think our Founders intended for Federal 
judges to be able to redraw the strike zone.
    I do not think our Founders intended for judges to be 
politicians in robes. Politicians--you do not want the United 
States Supreme Court to turn into this. Trust me. Politicians 
get to vote their preferences under our democracy. Judges do 
not. Judges do not.
    And, finally, unlike some of my colleagues, I do not think 
our Founders intended the United States Supreme Court to become 
a mini-Congress. I do not think our Founders intended members 
of the United States Supreme Court to try to rewrite our 
statutes or the United States Constitution every other Thursday 
because they--to prosecute a social or an economic agenda that 
they cannot get by the voters. And that goes on in America 
every day. We have reached the point where one single solitary 
Federal judge in a limited venue can enjoin a Federal statute 
or an Executive order of the President of the United States for 
the entire country. And our Founders never intended that.
    I want to close with two very short quotations. The first, 
stated much more eloquently than I can, is Justice Curtis in 
1857. You have probably read it. He was dissenting in the Dred 
Scott case. This is what Justice Curtis said: ``When a strict 
interpretation of the Constitution, according to the fixed 
rules which govern the interpretation of laws, is abandoned, 
and the theoretical opinions of individuals are allowed to 
control its meaning, we have no longer a Constitution; we are 
under the Government of individual men, who for the time being 
have power to declare what the Constitution is, according to 
their own views of what it ought to mean.''
    And, finally, a more contemporary statement from a 
gentleman that you are very familiar with, Justice Scalia. He 
said it in real-world terms. This is what he said: ``The 
American people love democracy and the American people are not 
fools. The American people know their value judgments are quite 
as good as those taught in any law school, maybe better. Value 
judgments, after all, should be voted on, not dictated.''
    Thank you, Mr. Chairman.
    Chairman Graham. Thank you, Senator Kennedy. Senator 
Blackburn.

              STATEMENT OF HON. MARSHA BLACKBURN,
           A U.S. SENATOR FROM THE STATE OF TENNESSEE

    Senator Blackburn. Thank you, Mr. Chairman.
    Judge Barrett, congratulations to you and to your family. I 
am delighted to see that they are back in the room and I am 
thrilled that they are here with us today.
    You know, we have had 164 American citizens come before 
this Committee for nomination to the Supreme Court and today is 
the fifth time that we have had a female judge come before us, 
so we welcome you.
    And I will say this, unfortunately, it is neither rare, nor 
remarkable, to see the kind of performances my Democratic 
colleagues have put on today. What they are trying to do is to 
convince the American people that they should be terrified of 
Judge Amy Coney Barrett.
    If you listen closely to their full statements, it betrays 
their true intent. If you go back through the transcript, you 
are going to find not a coherent, legal counterargument, but a 
panicked stump speech on behalf of their controversial 
platform.
    Rather than reviewing your judicial philosophies, they are, 
instead, choosing to project their own desires and their fears 
onto the American people. It sounds as if they are trying to 
create a panic.
    They decided to drum up indignation over the fact that you 
dared to present a counterargument against the 
constitutionality of the Affordable Care Act. Apparently, a 
difference of opinion between two brilliant jurists who often 
disagree is just too much for them.
    The rhetoric is unsettling, but after listening to them, I 
worry more about its underpinnings. Because my colleagues' 
remarks have displayed their troubling belief that nothing but 
an activist judiciary will do for them.
    Given your track record, you would think that my colleagues 
would jump at the opportunity to support a successful female 
legal superstar who is highly regarded by both her Democratic 
and Republican colleagues, and who is a working mom. But as 
today's increasingly paternalistic and, frankly, disrespectful 
arguments have shown, if they had their way, only certain kinds 
of women would be allowed into this hearing room.
    On that note, not so long ago in another hearing, they 
scrutinized your commitment to your Catholic faith and tried to 
use that as a way to question your competency and your 
professionalism. They know that that is unconstitutional. The 
Constitution forbids it.
    You are a brilliant jurist and a constitutional law expert. 
You will be an intellectual powerhouse on the Supreme Court, 
and you will steer the panel's focus toward textualism and 
originalism, as rightful guiding philosophies.
    I love Justice Scalia's definition of textualism. 
Textualism, ``in its present form, begins and ends with what 
the text says and fairly implies.'' He goes on to defend 
textualism, and explains that this method can lead to both 
conservative and liberal outcomes.
    Similarly, originalism doesn't always lead a jurist down 
the path they would most like to follow. This method of 
interpretation holds that the meaning of a legal document, such 
as the Constitution, remains fixed, even when applied over time 
to new questions. Staying true to these guidelines requires 
more study and patience than other methods that allow judges to 
reinvent the law or be activists when things get tricky.
    Since taking the bench, I appreciate that you have written 
over 100 opinions and have participated in over 900 appeals 
where you have applied this complex reasoning. Thank you for 
that.
    We know that you are a prolific scholar and author of over 
a dozen articles on the courts and the Constitution. The ABA 
has rated you as ``well qualified'' to serve as a Supreme Court 
Justice.
    I appreciate that many times you have probably done this 
with a child in your arms, on your hip, or somewhere in tow, 
maybe waiting for a ballgame to begin. You have done all of 
this as you have been a friend, a mentor, a wife, and a mom. 
These are impressive qualifications by any standard, so it is 
no surprise that you are fielding attacks from other angles.
    Many of my colleagues have wasted a lot of their time 
complaining that the process, in an effort to delay and 
obstruct a legitimate, constitutionally sound confirmation 
hearing. Let's not forget, it was the Democrats who took an axe 
to process in 2018 when they dropped last-minute, 
unsubstantiated sexual assault allegations against Justice 
Kavanaugh. We still don't have the full story about their level 
and manner of coordination with activists and mainstream media 
outlets, but what we do know is that they turned that 
confirmation into a circus. And on that note, it is hard to 
take seriously their complaints about moving too quickly.
    We have heard about the timeline for Justice O'Connor, 33 
days; Justice Ginsburg, 43 days.
    And just a word on Justice Ginsburg, whose seat we are 
filling, she was, indeed, a role model for many because she 
fought to open more doors for women in the law and beyond, and 
I sincerely hope that I am as effective an advocate in the 
Senate as she was on the Court.
    We know from studying American history that women have had 
to always fight for a seat at the table. This goes back to 
Abigail Adams, who urged her husband, John, to please remember 
the ladies in their fight for independence and we know it took 
150 years for women to get that right to vote, but the 
Constitution allowed for that amendment process.
    Unfortunately, what we see today is that radical activists 
would like nothing more than to take a hatchet to process. 
Their favorite play is confronting the American people with the 
supposed illegitimacy of the Constitution. They argue that our 
Founders' flaws, and yes, they were flawed, all humans are, 
that the flaws invalidate the principles that bind this country 
together.
    This betrays a dangerously naive understanding of the point 
and purpose of our Founding legal document. The timeless 
principles contained in that document were written to protect 
individual rights absolutely. These principles, of course, 
include the separation of powers and federalism in our 
Government, a system of checks and balances that prevents 
encroachment by one branch or another.
    If Congress acts beyond the scope of its legislative 
authority or the President grows too power-hungry, the 
judiciary has the authority to reign that branch back in.
    And if the vast bureaucracy dares to overregulate, States 
and their citizens have the right to stand up and challenge 
that overreach as being beyond the scope of Federal power.
    Together, the separation of powers and federalism have 
protected our Republic from falling into the hands of tyrants. 
But keep in mind that the Founders despised the tyranny of 
British rule just as much as they despised the whims of the 
mob.
    Flash forward to today when American exceptionalism is 
under bitter attack from yet another mob. While most Americans 
take pride in our heritage, a vocal minority finds fault at 
every turn. They demand to note, can we still call the 
Constitution a relevant, valid source of law even if no women 
or people of color participated in the drafting? Are the 
principles in that document still capable of curbing abuses of 
power and safeguarding freedom? Can we have faith that the 
future of democracy remains strong despite a summer of looting 
and violence in the streets?
    The answer to each is ``yes,'' and over the next few days, 
I expect that you, Judge Barrett, will explain why.
    So many families are watching today and we are all going to 
be listening. Thank you for appearing before us. We look 
forward to your answers.
    Chairman Graham. Thanks, Senator Blackburn.
    I have two letters I would like to submit for the record, 
one from the Architect of the Capitol showing that the room is 
CDC-compliant, I do want to introduce that.
    [The information appears as a submission for the record.]
    Chairman Graham. And we do have the ABA rating regarding 
Judge Barrett. I'll introduce it in the record, but it is 
fairly short, so I will just read it if that is okay.
    ``The American Bar Association's Standing Committee on the 
Federal Judiciary has completed it evaluations of the 
professional qualifications of Judge Amy Coney Barrett, who has 
been nominated by the President to be an Associate Justice of 
the Supreme Court of the United States.
    ``As you know, the Standing Committee confines its 
evaluation to the qualities of integrity, professional 
competence, and judicial temperament. A substantial majority of 
the Standing Committee determined that Judge Barrett is `well 
qualified,' and a minority is of the opinion that she is 
`qualified' to serve on the Supreme Court of the United States. 
The majority rating represents the Standing Committee's 
official rating.'' I enter that into the record.
    [The information appears as a submission for the record.]
    Chairman Graham. Now we have a----
    Senator Kennedy. Mr. Chairman?
    Chairman Graham. Yes?
    Senator Kennedy. Could you explain what CDC-compliant 
means?
    Chairman Graham. It means that the room is set up for 
social distancing regarding the virus that the Architect of the 
Capitol measured the space.
    And, as to me, I was tested a week ago Friday. I had brief 
contact with Senator Lee. I was negative. I have been told by 
Senator Monahan and a physician in South Carolina there is no 
requirement to test me. I feel fine. My exposure is not such 
that I should be quarantined or tested.
    Anybody that wants to get tested, they can. And I made a 
decision to try to make the room as safe as possible but to 
come to work. Millions of Americans are going to work today. 
Somebody may have tested positive in a restaurant, a military 
unit, a fire department, or a police department.
    You make it as safe as possible, you manage the risk, and 
you go to work. I am not going to be told to be tested by 
political opponents. I am going to be tested as an individual 
when the CDC requires it.
    I think we can safely conduct this hearing, we have, and I 
think it is off to a good start. So, I do care about 
everybody's safety, but as a lot of Americans out there, we 
have to go to work and you can't demand not to show up to work 
unless everybody you may come into contact with is tested, 
whether they need to or not. And we are not going to do that 
here.
    Now, we have a panel.
    Senator Kennedy. Thank you, Mr. Chairman.
    Chairman Graham. Thank you, Senator Kennedy, for that 
question.
    We have three people: our two colleagues from Indiana, 
Senator Todd Young and Senator Mike Braun--I know Louisiana 
adopts our judge here, but she is living now in Indiana, and 
the third is Professor Patricia O'Hara, who I would like to 
briefly introduce.
    Professor O'Hara is a professor emerita, I hope I got that 
right, of law at Notre Dame Law School. She has served on the 
faculty for 40 years. She first arrived at Notre Dame in 1971 
as a first-year law student. She graduated summa cum laude and 
first in her class in 1974.
    Described as the heart and soul of Notre Dame for over 40 
years by current Notre Dame Law Dean G. Marcus Cole, Professor 
O'Hara's career at Notre Dame was that as a trailblazer. She 
was the first woman to graduate first in her class from Notre 
Dame, the first woman appointed by the board of trustees to 
serve as an officer of the university as vice president for 
student affairs, and the first woman to serve as dean of the 
law school.
    So, with that, we will start with Senator Todd Young. I 
think all these individuals are remote.
    Senator Todd Young.

   INTRODUCTION OF HON. AMY CONEY BARRETT, NOMINEE TO BE AN 
ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES, BY 
   HON. TODD YOUNG, A U.S. SENATOR FROM THE STATE OF INDIANA

    Senator Young. Well, thank you, Chairman Graham, Ranking 
Member Feinstein, and Members of the Committee.
    Today I join you in the shadow of Monument Circle in 
Indianapolis, Indiana. I am honored to appear before you to 
introduce Judge Amy Coney Barrett, a remarkable Hoosier, poised 
to make her mark on our country. She truly is an American 
original.
    In 2017, when there was an opening on the U.S. Court of 
Appeals for the Seventh Circuit, my office began looking for an 
extraordinary American who would uphold the rule of law. In 
response, we received dozens of applications from many of the 
finest legal minds in the State of Indiana.
    My staff and I began researching, in earnest, to learn 
everything we could about each candidate to determine who among 
them would make the best judge and I interviewed the best of 
the best. One of those was a constitutional law professor from 
the University of Notre Dame by the name of Amy Coney Barrett.
    I first met with then-Professor Barrett in the spring of 
2017 and it was abundantly clear that she was a star. A 
brilliant legal scholar she was and is--held in the highest 
regard by her peers in the legal world. Her integrity and 
character are unimpeachable. She's a model of collegiality and 
fairness and, simply, she possessed all of the necessary 
qualities to be a great appellate court judge then and be a 
Supreme Court Justice now.
    My colleague, former Senator Joe Donnelly, and I approved 
her for a nomination and a hearing was set. Unfortunately, some 
resorted to attacks on Judge Barrett's religious convictions. I 
can tell you that in Indiana, and much of the country, faith is 
viewed as an asset in a public servant, not a liability. As 
Notre Dame President Father Jenkins reminded us then, being a 
person of faith doesn't interfere with one's ability to apply 
the law.
    Thankfully, Judge Barrett's qualifications outshone 
personal attacks and she was confirmed by a bipartisan majority 
to the U.S. Court of Appeals for the Seventh Circuit. As a 
member of that court, Judge Barrett's proven that she is a 
rather brilliant jurist who interprets the Constitution as 
written and carefully weighs the facts of a given case.
    She has heard more than 600 cases on the Seventh Circuit 
and authored nearly 100 opinions. And I should note, she is the 
first woman from Indiana ever to serve on that esteemed court.
    During that Seventh Circuit interview back in 2017, it was 
obvious that Judge Barrett loved the law and the Constitution. 
Her love for her family, her husband, Jesse, and their 7 
children, was also clear. If confirmed, Judge Barrett will be 
the fifth woman and the first mother of school-age children to 
serve as a Supreme Court Justice.
    Now, being a parent doesn't qualify one to sit on the 
Supreme Court, but it does give us Hoosiers yet another reason 
to be proud of Amy Coney Barrett and the trail she has blazed, 
leading her to this moment.
    Education, faith, family, community, equal justice under 
the law--these are all values that Midwesterners hold dear. 
Indeed, they are values that Americans hold dear, and they are 
all values embodied by Judge Barrett.
    Author Kurt Vonnegut, another American original from 
Indiana, once said, ``I don't know what it is about Hoosiers, 
but wherever you go, there is always a Hoosier doing something 
very important.''
    Where Amy Coney Barrett has gone, she has always been doing 
something very important, from raising a family, to educating 
the next generation of scholars, to administering justice on 
the Court of Appeals. It is my hope that this body will confirm 
Judge Barrett in a bipartisan fashion so that we will soon find 
another Hoosier doing something very important on the Supreme 
Court of the United States.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Young appears as a 
submission for the record.]
    Chairman Graham. Thank you, very much, Senator Young.
    Senator Braun is--were we able to connect with him? We were 
having some technical problems. We're good? Senator Braun? 
Mike, can you hear me?
    Senator Braun. I can hear you.
    Chairman Graham. All right. The floor is yours.

   INTRODUCTION OF HON. AMY CONEY BARRETT, NOMINEE TO BE AN 
ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES, BY 
   HON. MIKE BRAUN, A U.S. SENATOR FROM THE STATE OF INDIANA

    Senator Braun. Chairman Graham, Ranking Member Feinstein, 
it's an honor for me to join Senator Young and Professor 
Emerita O'Hara to introduce a fellow Hoosier who makes our 
State proud.
    I'm doing this from my hometown, Jasper, Indiana, at City 
Hall, literally, and we're on Main Street, figuratively, from a 
place, town, State that represents a broad cross-section of our 
country.
    In 2013, Justice Antonin Scalia wrote that ``the Federal 
Judiciary is hardly a cross-section of America.'' Today, it is 
still easy to see what he meant.
    When confirmed, Amy Coney Barrett will become the only 
Justice on the Supreme Court who has spent the majority of her 
professional life in Middle America, not on the East Coast. 
When confirmed, she will be the only sitting Justice who did 
not receive her law degree from Harvard or Yale, yet her Notre 
Dame law credentials are also from a first-rate university. 
When confirmed, she will be only the second current Justice to 
join the Court from west of the Nation's Capital.
    When this vacancy arose, I was the first to voice my 
support for a nominee from the Midwest because I believe we 
need more judges who understand those Midwestern values that 
guide our lives: faith, family, community, and respect for the 
law.
    Amy Coney Barrett is that quintessential Midwesterner: 
hard-working, generous, humble. She's a top-flight law scholar 
who's just as comfortable at the Saturday morning tailgate as 
she is in the ivory tower, a legal titan who drives a minivan.
    I immediately supported Judge Barrett's nomination not only 
because she is a highly qualified jurist, but because she has 
proven, both on and off the bench, that she has the decency and 
fundamental respect for our country and its Constitution to 
serve honorably.
    And now, I would like to say a word about faith. Much will 
certainly be made in the coming days of Judge Barrett's 
Catholic faith and how she practices it. It's a faith that I 
and many Americans share.
    Our Founders anticipated this question and, as they so 
often do, got it right. Liberals and conservatives alike are 
bound by the Constitution's firm edict that no religious test 
should ever be required as a qualification to any office of 
public trust under the United States.
    I believe hostility toward Judge Barrett's religious 
beliefs today could set a dangerous precedent of hostility 
toward other religious beliefs tomorrow.
    Judge Barrett has been clear in her public life where she 
falls on the question of faith and the law. As she concluded in 
a 1998 essay, we're sure to hear it cherry-picked over the next 
few weeks, ``Judges cannot--nor should they try to--align our 
legal system with the Church's moral teaching whenever the two 
diverge.''
    Faith is very important to most Americans and I agree that 
faith should be a keyword in Judge Barrett's confirmation, but 
I believe the most important question of faith should be, is 
she willing to faithfully interpret the Constitution?
    Judge Barrett's record shows that she will. Throughout her 
nearly 100 written opinions on the appellate court, Judge 
Barrett has proven that she is a strong constitutional 
originalist who will not cut the American people out of their 
own Government by treating the Supreme Court as a third Chamber 
of Congress.
    On the bench, her qualifications are beyond question. Off 
the bench, she exemplifies the generosity and character 
Hoosiers are known for and she has lived a life rooted in those 
Heartland values I mentioned before: faith, family, community, 
and respect for the law.
    Hoosiers should be proud to have Amy Coney Barrett serving 
and representing our State currently and I believe she will 
make all Americans proud as a Justice to the Supreme Court.
    Thank you.
    Chairman Graham. Thank you, Senator.
    Professor O'Hara? Professor? Is the professor with us?
    [No response.]
    Chairman Graham. Professor, could you count to 10, please? 
Could you speak if you can hear me?
    [No response.]
    Chairman Graham. Professor O'Hara, if you can, speak up. If 
you hear me, please speak up.
    [No response.]
    Chairman Graham. Okay. I don't know, she must be in the 3G 
part of Indiana.
    [Voice off microphone.] It will be a photograph interview.
    Chairman Graham. Let's see if we are in contact with her at 
all. Is it working?
    [No response.]
    Chairman Graham. Professor, could you speak up, please?
    [Voice off microphone.] Suggest that she unmute her 
microphone.
    Chairman Graham. You need to unmute your mic, I've been 
told, Professor O'Hara. How does she do that?
    [Voice off microphone.] Just tap it.
    Chairman Graham. Put a quarter in it. I don't know.
    [Laughter.]
    Chairman Graham. You are not going to be able to support 
her, I know that. Can she hear us?
    Well, I'm afraid we have technical difficulties and I guess 
what we will do now is, if you can fix them in the next 30 
seconds, let me know. If not, Judge Barrett, we will hear from 
you.
    Any progress with Professor O'Hara?
    [No response.]
    Chairman Graham. Okay. Judge, if you don't mind, you can 
take your mask off, please.
    Raise your right hand and stand up, please.
    [Witness is sworn in.]
    Chairman Graham. Thank you. Welcome to the Committee, to 
your family. You all have done a great job over there.
    The floor is yours, Judge.

  STATEMENT OF HON. AMY CONEY BARRETT, NOMINEE TO SERVE AS AN 
  ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES

    Judge Barrett. Thank you, Chairman Graham--I need to make 
sure this is on--Ranking Member Feinstein, and Members of the 
Committee.
    I am honored and humbled to appear before you to today as a 
nominee for Associate Justice of the Supreme Court.
    I thank the President for entrusting me with this profound 
responsibility, as well as for the graciousness that he and the 
First Lady have shown my family throughout this process.
    I thank Senator Young for introducing me, as he did at my 
hearing to serve on the Seventh Circuit.
    And I also thank Senator Braun for his support.
    And while she could not be with us via the satellite, I am 
also grateful to former Dean Patty O'Hara, of the Notre Dame 
Law School. She hired me as a professor nearly 20 years ago and 
she has been a mentor, colleague, and friend ever since.
    I thank the Members of this Committee and your other 
colleagues in the Senate who've taken the time to meet with me 
since my nomination. It's been a privilege to meet you.
    As I said, when I was nominated to serve as a Justice, I'm 
used to being in a group of 9, my family. Nothing is more 
important to me and I am very proud to have them behind me.
    My husband, Jesse, and I have been married for 21 years. He 
has been a selfless and wonderful partner every step of the 
way.
    I once asked my sister, ``Why do you think marriage is 
hard? People are always saying that. I think it's easy.''
    And she looked at me and said, ``Well, maybe you should ask 
Jesse if he agrees with that.'' I decided not to take her 
advice because I know that I am far luckier in love than I 
deserve.
    Jesse and I are parents to 7 wonderful children. Our oldest 
daughter, Emma, is a sophomore in college who just might follow 
her parents into a career in the law.
    Next is Vivian, who came to us from Haiti. When Vivian 
arrived, she was so weak that we were told she might never talk 
or walk normally, but now she deadlifts as much as the male 
athletes in our gym and I assure you she has no trouble 
talking.
    Tess is 16 and while she shares her parents' love for the 
liberal arts, she also has a math gene that seems to have 
skipped her parents' generation.
    John Peter joined us shortly after the devastating 
earthquake in Haiti, and Jesse, who brought him home, still 
describes the shock on J.P.'s face when he got off the plane in 
wintertime Chicago. Once that shock wore off, J.P. assumed the 
happy-go-lucky attitude that is still his signature trait.
    Liam is smart, strong, and kind, and to our delight, he 
still loves watching movies with Mom and Dad.
    Ten-year-old Juliet is already pursuing her goal of 
becoming an author by writing multiple essays and short 
stories, one of which she recently submitted for publication.
    And our youngest, Benjamin, is at home with friends. 
Benjamin has Down syndrome, and he is the unanimous favorite of 
the family. He was watching the hearing this morning, I'm told, 
and he was calling out our names as he saw the kids in the 
back.
    My own siblings are here, some in the hearing room and some 
nearby: Carrie, Megan, Eileen, Amanda, Vivian, and Michael are 
my oldest and dearest friends. We have seen each other through 
both the happy and hard parts of life, and I am so grateful 
that they are with me now.
    My parents, Mike and Linda Coney, are watching from their 
New Orleans home. My father was a lawyer and my mother was a 
teacher, which explains why I became a law professor.
    More important, my parents modeled for me, and my 6 
siblings, a life of service, principle, faith, and love. I 
remember preparing for a grade school spelling bee against a 
boy in my class and to boost my confidence, my dad sang, 
``Anything Boys Can Do, Girls Can Do Better,'' and, at least as 
I remember it, I spelled my way to victory.
    I received similar encouragement from the devoted teachers 
at St. Mary's Dominican, my all-girls high school in New 
Orleans. When I went to college, it never occurred to me that 
anyone would consider girls less capable than boys.
    My freshman year, I took a literature class filled with 
upper classmen English majors and when I did my first 
presentation, which was on ``Breakfast at Tiffany's,'' I feared 
I'd failed. But my professor took the time to talk to me, and 
she filled me with confidence about how well I had done, and 
she became a mentor. And when I graduated with a degree in 
English, she gave me Truman Capote's collective works as a 
gift.
    Although I considered graduate studies in English, I 
decided that my passion for words was better suited to 
deciphering statutes than novels. I was fortunate to have 
wonderful legal mentors, in particular, the judges for whom I 
clerked.
    The legendary Judge Laurence Silberman of the D.C. Circuit 
gave me my first job in the law, and he continues to teach me 
today. He was by my side during my Seventh Circuit hearing. He 
swore me in at my investiture, and he is cheering me on from 
his living room right now.
    I also clerked for Justice Scalia, and like many law 
students, I felt like I knew the Justice before I ever met him 
because I had read so many of his colorful, accessible 
opinions. More than the style of his writing, though, it was 
the content of Justice Scalia's reasoning that shaped me.
    His judicial philosophy was straightforward: a judge must 
apply the law as it is written, not as she wishes it were. 
Sometimes that approach meant reaching results that he did not 
like, but as he put it in one of his best-known opinions, that 
is what it means to say that we have a government of laws and 
not of men. Justice Scalia taught me more than just law. He was 
devoted to his family, resolute in his beliefs, and fearless of 
criticism.
    And as I embarked on my own legal career, I resolved to 
maintain that same perspective. There's a tendency in our 
profession to treat the practice of law as all-consuming while 
losing sight of everything else. But that makes for a shallow 
and unfulfilling life.
    I worked hard as a lawyer and as a professor. I owed that 
to my clients, to my students, and to myself. But I never let 
the law define my identity or crowd out the rest of my life.
    A similar principle applies to the role of courts. Courts 
have a vital responsibility to the rule of law, which is 
critical to a free society. But courts are not designed to 
solve every problem or right every wrong in our public life. 
The policy decisions and value judgments of Government must be 
made by the political branches elected by and accountable to 
the people. The public should not expect courts to do so and 
courts should not try.
    That is the approach that I have strived to follow as a 
judge on the Seventh Circuit. In every case, I have carefully 
considered the arguments presented by the parties, discussed 
the issues with my colleagues on the court, and done my utmost 
to reach the result required by the law, whatever my own 
preferences might be.
    I try to remain mindful that while my court decides 
thousands of cases a year, each case is the most important one 
to the litigants involved. After all, cases are not like 
statutes, which are often named for their authors. Cases are 
named for the parties who stand to gain or lose in the real 
world, often through their liberty or livelihood.
    When I write an opinion resolving a case, I read every word 
from the prospective of a losing party. I ask myself how I 
would view the decision if one of my children was the party 
that I was ruling against. Even though I would not like the 
results, would I understand that the decision was fairly 
reasoned and grounded in law. That is the standard that I set 
for myself in every case and it is the standard that I will 
follow, so long as I am a judge on any court.
    When the President offered me this nomination, I was deeply 
honored, but it was not a position I had sought out, and I 
thought carefully before accepting. The confirmation process 
and the work of serving on the Court, if confirmed, requires 
sacrifices, particularly for my family.
    I chose to accept the nomination because I believe deeply 
in the rule of law and the place of the Supreme Court in our 
Nation. I believe Americans of all backgrounds deserve an 
independent Supreme Court that interprets our Constitution and 
laws as they are written, and I believe I can serve my country 
by playing that role.
    I come before this Committee with humility about the 
responsibilities that I have been asked to undertake and with 
appreciation for those who have come before me.
    I was 9 years old when Sandra Day O'Connor became the first 
woman to sit in this seat. She was a model of grace and dignity 
throughout her distinguished tenure on the Court.
    When I was 21 years old and just beginning my career, Ruth 
Bader Ginsburg sat in this seat. She told the Committee, ``What 
has become of me could only happen in America.''
    I have been nominated to fill Justice Ginsburg's seat but 
no one will ever take her place. I will be forever grateful for 
the path she marked and the life she led.
    If confirmed, it would be the honor of a lifetime to serve 
alongside the Chief Justice and seven Associate Justices. I 
admire them all and would consider each a valued colleague.
    And I might bring a few new perspectives to the Bench. As 
the President noted when he announced my nomination, I would be 
the first mother of school-age children to serve on the Court. 
And I know that it would make Senators Young and Braun happy to 
know that I would be the first Justice to join the Court from 
the Seventh Circuit in 45 years. I would be the only sitting 
Justice who didn't attend school at Harvard or Yale, but I am 
confident that Notre Dame could hold its own, and maybe I could 
even teach them a thing or two about football.
    As a final note, Mr. Chairman, I would like to thank the 
many Americans from all walks of life who have reached out with 
messages of support over the course of my nomination. I believe 
in the power of prayer, and it has been uplifting to hear that 
so many people are praying for me.
    I look forward to answering the Committee's questions over 
the coming days, and if I am fortunate enough to be confirmed, 
I pledge to faithfully and impartially discharge my duties to 
the American people as an Associate Justice of the Supreme 
Court.
    Thank you.
    [The prepared statement of Judge Barrett appears as a 
submission for the record.]
    Chairman Graham. Thank you very much, Judge Barrett.
    Let's try Professor O'Hara. Any luck with her?
    Professor O'Hara. I'm here, Chairman Graham.
    Chairman Graham. Thank you. I apologize for the problem.
    The floor is yours.

   INTRODUCTION OF HON. AMY CONEY BARRETT, NOMINEE TO BE AN 
ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES, BY 
 PROFESSOR PATRICIA A. O'HARA, PROFESSOR EMERITA OF LAW, NOTRE 
              DAME LAW SCHOOL, NOTRE DAME, INDIANA

    Professor O'Hara. That is very kind of you. It is 
anticlimactic because you have already heard from the most 
important person from whom you need to hear. But it is very 
kind of you to take the time.
    I have known Judge Amy Coney Barrett for just shy of 20 
years and I want to thank you, the Ranking Member, Senator 
Feinstein, the distinguished Members of the Judiciary 
Committee, Senator Young and Senator Braun for the opportunity 
to speak about her here today.
    I first came to meet her when, as dean of the law school, 
together with my colleagues, we recruited her to the faculty in 
2002. I was aware of her reputation as a law student, but I had 
not taught her. So, I can well remember that in the initial 
interview, from my standpoint, I was not thinking of her so 
much as a Notre Dame alum, but, rather, as a candidate in whom 
many law schools would have an interest.
    After all, she was first in her class; she was executive 
editor of the law review; she had held two distinguished 
clerkships for demanding jurists, Judge Laurence Silberman on 
the Court of Appeals for the D.C. Circuit and Justice Antonin 
Scalia; a short period in private practice at, then, at Baker 
Botts; and an Olin Fellowship at George Washington University 
law school. So, from my standpoint as dean, in a market in 
which law schools compete aggressively for candidates with 
sterling credentials like hers, Amy Coney Barrett was a big hit 
and a big win for us.
    In the course of the next few years, I was responsible for 
creating an environment in which she could take her potential 
and reach the maturation that would be necessary to meet the 
demanding standards of excellence in scholarship and teaching 
for promotion to tenure. I want to assure you that it was the 
easiest task of my entire 10 years as dean.
    I watched her develop into an exceptional teacher and a 
superb scholar, except that I must confess to say watching her 
develop is a bit of a misnomer, because in many ways, Judge 
Barrett sprang full-grown into the legal academy. The first of 
three distinguished teaching awards that she holds from our 
students was presented to her by only the second class that she 
taught.
    And in my annual visits to observe her classroom teaching, 
it became clear to me why that was the case. Our students, then 
and now, hold her in awe for the power of her intellect and for 
her consummate professionalism.
    To read her student teaching evaluations is like reading a 
thesaurus that only has superlatives in it. Her classes are 
known for the clarity of the presentation of substantive legal 
material, but also for open-minded, non-directed discussion, 
question-and-answer, respectful of differences and of 
differences of the style with our students.
    Our students strive to meet her high and demanding 
expectations because they just don't want to disappoint her, 
and they greatly appreciate her availability outside the 
classroom for mentoring and support.
    At the same time that she was developing and building 
relationships with our students, she also produced an 
incredible portfolio of scholarships, superb in both its depth 
and its quality. Scholars around the academy hold her work in 
the highest regard.
    And so, when it did come time for her tenure case, I can 
only tell you, without breaching the confidentiality of that 
process, that it was as easy as a tenure case could possibly 
be. Her work appears in leading law reviews: University of 
Chicago, Columbia, Cornell, Virginia, and Texas, to name but a 
few.
    I was not surprised in later years when she was tapped for 
service on the Appellate--Advisory Committee on the Federal 
Appellate Rules of Procedure and elected to the prestigious 
American Law Institute.
    And in her 3 years as a judge on the Court of Appeals for 
the Seventh Circuit her opinions have been characterized by the 
same qualities as her scholarship: intellectual rigor, 
painstaking analysis, clarity of legal reasoning and of 
writing, accompanied by her deep commitment as a jurist to 
apply the law to the facts of the case before her.
    Stellar as her professional accomplishments are, no 
introduction of Professor Barrett is complete without talking 
about her personal qualities. She is brilliant, but humble; 
fair and impartial, but empathetic; open-minded and respectful 
of differences; a skilled listener and able to build consensus; 
generous, especially to those in need.
    If I had to describe her in just a few words, I would tell 
you that Amy Coney Barrett is a woman who leads an integrated 
life of mind, heart, and soul, and it's that integration that 
allows her to move so seamlessly between her professional 
responsibilities and her family commitments.
    It humbles me now as it did then, 12 years ago, that I was 
tasked at one point in my life with evaluating the professional 
qualifications of Judge Barrett in a university setting. Truth 
be told, she ran circles around me as a junior faculty member 
and in the intervening years, she has left me completely in the 
dust. And nothing gives me more joy than to be able to say so 
because this is the standard of excellence that we should 
demand for institutions of singular importance to us.
    I have only had two opportunities to communicate with this 
distinguished Committee. The first was 10 years ago when I 
wrote a very strong letter of support for then-nominee, now 
Justice Elena Kagan, whose tenure as dean of Harvard Law School 
overlapped with my own tenure as dean here. The second is today 
in presenting Amy Coney Barrett to you and endorsing her in 
equally strong terms.
    There may be some who would find those two recommendations 
in juxtaposition, but I find them entirely consistent. Over the 
course of my 40 years in the legal academy, I have been blessed 
with the opportunity to meet many Supreme Court Justices. As to 
the Justices I've met, while their judicial philosophies may 
differ and their interpretive methodologies may differ, what 
they share is powerful intellect, rigorous work ethics, skilled 
listening skills, the ability to be open to persuasion and also 
to persuade themselves, to be fair and impartial. They are 
people of integrity and they have a commitment to applying the 
law to the facts of the case before them.
    They understand that their role as Justices is to advance 
the rule of law, not to advance personal policy preferences. 
They understand their solemn responsibility to preserve the 
Court as an institution, not wings of the Court--the Court, a 
single institution that plays a singular role in our Republic.
    I know firsthand from having worked closely with Judge 
Barrett for almost 20 years that she possesses all these same 
qualifications in abundance, and I trust that over the course 
of the next few days, with the opportunity to engage in 
dialogue with her, that you will come to the same conclusion 
and recommend her for confirmation as an Associate Justice to 
the Supreme Court of the United States.
    Thank you so much for taking this late opportunity to have 
me say a few words about Professor Barrett.
    [The prepared statement of Professor O'Hara appears as a 
submission for the record.]
    Chairman Graham. Thank you very much, Professor O'Hara.
    And thank you, Judge Barrett, and to your family, 
congratulations and welcome.
    We're going to have a couple long days ahead. Questions for 
the record will be due this Friday at 8 o'clock, which is 
standard practice for the Committee.
    We begin tomorrow 30-minute rounds, followed by 20-minute 
rounds. Just do the math, we have got a couple long days ahead 
of us, so get some rest.
    We will be in recess until tomorrow at 9 o'clock.
    [Whereupon, at 2:14 p.m., the Committee was recessed.]
    [Additional material submitted for the record for Day 1 
follows Day 4 of the hearing.]


                          CONTINUATION OF THE
                      CONFIRMATION HEARING ON THE
                  NOMINATION OF HON. AMY CONEY BARRETT
                   TO BE AN ASSOCIATE JUSTICE OF THE
                   SUPREME COURT OF THE UNITED STATES

                              ----------                              


                       TUESDAY, OCTOBER 13, 2020

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9 a.m., in Room 
216, Hart Senate Office Building, Hon. Lindsey O. Graham, 
Chairman of the Committee, presiding.
    Present: Senators Graham [presiding], Grassley, Cornyn, 
Lee, Cruz, Sasse, Hawley, Tillis, Ernst, Crapo, Kennedy, 
Blackburn, Feinstein, Leahy, Durbin, Whitehouse, Klobuchar, 
Coons, Blumenthal, Hirono, Booker, and Harris.

          OPENING STATEMENT OF HON. LINDSEY O. GRAHAM,
        A U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA

    Chairman Graham. Good morning, everyone. Welcome back.
    Judge, thank you. Good day yesterday. Family did great. You 
all clean up well. You look good.
    So, the game plan for today is to do our first round of 30-
minute questioning. Each Senator will have 30 minutes to 
interact with Judge Barrett. Then we will follow up with a 
second round of 20 minutes. That is what we have been doing in 
the Committee since I have been here.
    I know we will not get it all done today, but the goal is 
to get through the first 30-minute period today, then come back 
Wednesday and finish up. Then we will go on about our business.
    So I will try to--I will make sure I stay within 30 minutes 
for sure, and if I can shorten it up, I will. So let us 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 the 
Affordable Healthcare Act. What I am going to try to do very 
briefly this morning is to 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 pre-existing 
conditions. I want to give you my side of the story about 
Obamacare. Now 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 do not want it. We want 
something better. We want something different.
    You know what we want in South Carolina? ``South Carolina 
care,'' not Obamacare. Now why do we want that?
    Under the Affordable Care Act, 3 States get 35 percent of 
the money, folks. Can you name them? I will help you--
California, New York, and Massachusetts. They are 22 percent 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 percent of the money when they are 
only 22 percent of the population? That is the way they 
designed the law. The more you spend, the more you get. What 
does it mean for the people of South Carolina?
    If you had a per-patient--per-patient formula where you got 
the same amount from the Federal Government to the State, 
whether you lived in Charleston and Columbia, or San Francisco, 
or New York City, if you leveled that out, it would be almost 
$1 billion more for us in South Carolina.
    So, to my friends over there, we are going to fight back. 
We want our money. If you are going to have money allocated for 
Obamacare, we are not going to sit back and quietly let you 
give 35 percent of it to 3 States.
    What else has happened in South Carolina? Four rural 
hospitals have closed because the revenue streams are 
uncertain. Thirty percent 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 percent. My coverage was almost 
nonexistent--a $6,000 deductible. So I want a better deal.
    And that is a political fight. I am in a campaign at home. 
If it were up to me, we would block grant this money, send it 
back to the States in a more fair allocation, and we would 
require pre-existing conditions to be covered as part of the 
block grant.
    We want sick people covered, but I 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. And the best way to get 
innovation is to allow people to try different things to get 
better outcomes.
    So, the debate on healthcare is consolidating all the power 
in Washington, have some bureaucrat you will never meet running 
this program versus having it centered in the State where you 
live. Under my proposal, South Carolina would get almost $1 
billion more. The State of South Carolina would be in charge of 
administering Obamacare. They could not build football stadiums 
with the money. They would have to spend it on healthcare. They 
would have to cover pre-existing conditions.
    But as a patient in South Carolina, you would have a voice 
you do not have today. If you did not like what was happening 
to you on the healthcare front, you could go to local officials 
and complain. And the people you are complaining to live in 
your State. They send their family to the same hospital that 
you go.
    That is a structural difference. That has got nothing to do 
with this hearing. It has got everything to do with politics. 
We on this side do not believe Obamacare is the best way to 
provide quality healthcare over time. Our friends on the other 
side, this is a placeholder for single-payer healthcare. If you 
do not believe me, just ask them.
    So, that is the fight going into 2020. Does not make them 
bad, it just makes them different. If it were up to me, 
bureaucrats would not be administering healthcare from 
Washington. People in South Carolina would be running 
healthcare. If it were up to me, we would get more money under 
Obamacare than we do today. Thirty-five percent would not go to 
3 States, and sick people would be covered.
    So, that is the political debate. We are involved in a 
campaign in South Carolina, and my fate will be left up to the 
people of South Carolina.
    So, that is what Obamacare is all about. Now how do you 
play in here, Judge? There is a lawsuit involving the 
Affordable Care Act before the Supreme Court, and we will 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 healthcare.
    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?
    Judge Barrett. Yes.
    Chairman Graham. What does that mean in English? Press the 
button. I mean, we all love Senator Lee, but in English.
    Judge Barrett. 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.
    Chairman Graham. Okay.
    Judge Barrett. So that meaning does not change over time, 
and it is not up to me to update it or infuse my own policy 
views into it.
    Chairman Graham. So in other words, you are 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?
    Judge Barrett. Yes.
    Chairman Graham. All right. Justice Scalia, he was an 
originalist. Right?
    Judge Barrett. Yes, he was.
    Chairman Graham. People say that you are a female Scalia. 
What would you say?
    Judge Barrett. 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 interpretation. And similarly to what I just 
said about originalism, for textualism, the judge approaches 
the text as it was written, with the meaning it had at the 
time, and does not 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 that is so because originalists do not 
always agree, and neither do textualists. Justices Scalia and 
Thomas disagreed often enough that my friend Judge Amul Thapar 
teaches a class called ``Scalia versus Thomas.'' You know, it 
is not a mechanical exercise.
    Chairman Graham. Well, I will wait until the movie comes 
out.
    [Laughter.]
    Chairman Graham. So, the bottom line for me is there is 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 American history, 
just not the law. She was a trailblazer. She fought for better 
conditions for women throughout society. She was unashamedly 
progressive in her personal thought. She was devout to her 
faith. She worked for the ACLU. She was proudly pro-choice, 
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 it is okay 
to be religiously conservative. I think it is okay to be 
personally pro-life. I think it is okay to live your life in a 
traditional Catholic fashion, and you still be qualified for 
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 do not know if you are 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 you are 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.
    Let us talk about Brown v. Board of Education because I 
know Senator Blumenthal will. I am going to talk about that.
    You said in writings it was a ``super-precedent.'' What did 
you mean?
    Judge Barrett. Well, in my writings, so as a professor, I 
talked about the doctrine of stare decisis. And ``super-
precedent'' is not a doctrinal term that comes from the Supreme 
Court, and I think maybe in political conversation or in 
newspapers, people use it different ways.
    But in my writing, I was using a framework that has been 
articulated by other scholars. And in that context, ``super-
precedent'' means precedent that is so well established that it 
would be unthinkable that it would ever be overruled. And there 
are about six cases on this list that other scholars have 
identified.
    Chairman Graham. Well, let's talk about Brown and talk 
about why it would be unthinkable. First, let us talk about 
what is the process that would lead to it being overruled. What 
would have to happen?
    Judge Barrett. For Brown to be overruled, you would have to 
have Congress or some State or local government impose 
segregation again, open segregated schools----
    Chairman Graham. Okay, let us stop right there. If you want 
to make yourself famous by the end of the day, you can say we 
want to go back to segregation. I promise you, you will be on 
every cable TV channel in America. I doubt if you will go very 
far.
    But the point we are trying to make here is the Court just 
cannot wake up and say let us revisit Brown. It has to be a 
case in controversy. Is that right?
    Judge Barrett. Yes, that is right.
    Chairman Graham. So before a Brown decision--you could 
review Brown, somebody out there would have to be dumb enough 
to pass a law saying let us go back to segregated schools. Is 
that fair to say?
    Judge Barrett. That is fair to say.
    Chairman Graham. Do you see that happening anytime soon?
    Judge Barrett. I do not see that happening anytime soon.
    Chairman Graham. Yes, I do not either. So let us talk about 
the process in general. There is the Heller case. What is that 
about?
    Judge Barrett. The Heller case is a case decided by the 
Supreme Court, which held that the Second Amendment protects an 
individual right to bear arms.
    Chairman Graham. 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?
    Judge Barrett. In defiance of Heller or----
    Chairman Graham. Or that was challenging the construct of 
Heller?
    Judge Barrett. That challenged the construct of Heller. If 
it was a lower--if it was brought in a lower court, Heller 
binds. I mean, Heller is--lower courts always have to follow 
Supreme Court precedent, and so that----
    Chairman Graham. And if the Supreme Court wanted to revisit 
Heller, what would they do?
    Judge Barrett. 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 then do so.
    Chairman Graham. So that is the way the process works?
    Judge Barrett. Yes. It would start because there was a law. 
Then there was a lawsuit. Then there was an appeal. Then the 
Court granted cert, and then the Court decided the case.
    Chairman Graham. Is that true no matter what the issue is? 
Whether it is gun, abortion, healthcare, campaign finance, does 
that process hold true for everything?
    Judge Barrett. Yes. You always--judges cannot 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, you know, 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.
    Chairman Graham. All right. Well, Senator Sasse gave us a 
good civics lesson. I hope that is the basic lesson in law 
here.
    So if a State said, you know, I do not 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?
    Judge Barrett. The same process would work. In that case, 
there would be--parties would have to sue the State, you know, 
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 whole decision-making process begins. You 
hear arguments from litigants on both sides. They write briefs. 
You talk to clerks as a judge. You talk to your colleagues, and 
you write an opinion. Opinions circulate, and you get feedback 
from your colleagues.
    So, it is an entire process. It is not something that a 
judge or Justice would wake up and say, ``Oh, we are hearing 
this case. I know what my vote is going to be.''
    Chairman Graham. Let's talk about the two Supreme Court 
cases regarding abortion. What are the two leading cases in 
America regarding abortion?
    Judge Barrett. Well, I think most people think of Roe v. 
Wade, and Casey is the case after Roe that preserved Roe's 
central holding. But Brown did it in a slightly different 
rationale.
    Chairman Graham. So what is that rationale?
    Judge Barrett. Rationale is that the State cannot impose an 
undue burden on a woman's right to terminate a pregnancy.
    Chairman Graham. Okay. Unlike Brown, there are States 
challenging on the abortion front. There are States that are 
going to a fetal heartbeat bill.
    I have a bill, Judge, that would disallow abortion on 
demand at the 20 weeks, the fifth month of the pregnancy. We 
are one of seven nations in the entire world that allow 
abortion on demand at the fifth month.
    The construct of my bill is because a child is capable of 
feeling pain in the fifth month. Doctors tell us to save the 
child's life, you have to provide anesthesia if you operate 
because they can feel pain. The argument I am making is if you 
have to provide anesthesia to save the child's life because 
they can feel pain, it must be a terrible death to be 
dismembered by an abortion.
    That is a theory to protect the unborn at the fifth month. 
If that litigation comes before you, will you listen to both 
sides?
    Judge Barrett. Of course. I will do that in every case.
    Chairman Graham. So I think 14 States have already passed a 
version of what I have just described. So there really is a 
debate in America still, unlike Brown v. Board of Education, 
about the rights of the unborn. That is just one example.
    So, if there is a challenge coming from a State, if a State 
passes a law and it goes into court where people say this 
violates Casey, how do you decide that?
    Judge Barrett. Well, it would begin in a district court, in 
a trial court. You know, the trial court would make a record, 
you know, the parties would litigate and fully develop that 
record in the trial court. Then it would go up to a court of 
appeals that would review that record, looking for error.
    And then, again, it would be the same process. Someone 
would have to seek certiorari at the Supreme Court. The Supreme 
Court would have to grant it. And then, at that point, it would 
be the full judicial process. It would be briefs, oral 
argument, conversations with law clerks in chambers, 
consultation with colleagues, writing an opinion, really 
digging down into it.
    It is not--it is not just a vote. You all do that. You all 
have a policy, and you cast a vote. The judicial process is 
different.
    Chairman Graham. Okay. So when it comes to your personal 
views about this topic, do you own a gun?
    Judge Barrett. We do own a gun.
    Chairman Graham. Okay. All right. Do you think you could 
fairly decide a case even though you own a gun?
    Judge Barrett. Yes.
    Chairman Graham. All right. You are Catholic?
    Judge Barrett. I am.
    Chairman Graham. I think we have established that. The 
tenets of your faith mean a lot to you personally. Is that 
correct?
    Judge Barrett. That is true.
    Chairman Graham. You have chosen to raise your family in 
the Catholic faith. Is that correct?
    Judge Barrett. That is true.
    Chairman Graham. Can you set aside whatever Catholic 
beliefs you have regarding any issue before you?
    Judge Barrett. I can. I have done that in my time on the 
Seventh Circuit. If I stay on the Seventh Circuit, I will 
continue to do that. If I am confirmed to the Supreme Court, I 
will do that still.
    Chairman Graham. And I would dare say that there are 
personal views on the Supreme Court, and nobody questions 
whether our liberal friends can set aside their beliefs. There 
is no question--no reason to question yours, in my view.
    So the bottom line here is that there is a process. You 
fill in the blanks, whether it is about guns and Heller, 
abortion rights.
    Let us 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 do not know what is going on 
out there, but I can tell you there is a lot of money being 
raised in this campaign. I would like to know where the hell 
some of it is coming from.
    But that is not your problem. Citizens United says what?
    Judge Barrett. Citizens United extends the protection of 
the First Amendment to corporations who are engaged in 
political speech.
    Chairman Graham. So if Congress wanted to revisit that, and 
somebody challenged it under Citizens United that Congress went 
too far, what would you do? How would the process work?
    Judge Barrett. Well, it would be the same process I have 
been describing. First, somebody would have to challenge that 
law in a case, somebody presumably who wanted to spend the 
money in a political campaign. It would wind its way up, and 
you know, judges would decide it after briefs and oral argument 
and consultation with colleagues and the process of opinion 
writing.
    Chairman Graham. Same-sex marriage. What is the case that 
established same-sex marriage as the law of the land?
    Judge Barrett. Obergefell.
    Chairman Graham. Okay. If there was a State who tried to 
outlaw same-sex marriage and there is litigation, would it 
follow the same process?
    Judge Barrett. Well, it would. And one thing I have 
neglected to say before, that is occurring to me now, is that 
not only would someone have to challenge that statute. And 
somebody--so if they outlawed--if they outlawed same-sex 
marriage, there would have to be a case challenging it. And for 
the Supreme Court to take it up, you would have to have lower 
courts going along and saying we are going to flout Obergefell.
    And the most likely result would be that lower courts, who 
are bound by Obergefell, would shut such a lawsuit down, and it 
would not make its way up to the Supreme Court. But if it did, 
it would be the same process I have described.
    Chairman Graham. Well, let us turn now to Senator Hawley's 
favorite topic, substantive due process. As a legal theory, 
what am I talking about? Can you explain it for the country? 
Because if you cannot, we are in trouble. I think I will have a 
hard time doing it.
    Judge Barrett. So both the Fourteenth and Fifth Amendments 
protect life--or provide that the State cannot take life, 
liberty, or property without due process of law. And that 
sounds like a procedural guarantee, but in Supreme Court 
precedent, it has a substantive component.
    And so, the Substantive Due Process Clause says that there 
are some liberties, some rights that people possess that the 
State cannot take away or cannot take away without a really 
good reason. So, the right to use birth control, the right to 
an abortion are examples of rights protected by substantive due 
process.
    Chairman Graham. These are judicially created rights not 
found in the document called the Constitution. Is that correct?
    Judge Barrett. Well, the Supreme Court has grounded them in 
the Constitution, although----
    Chairman Graham. But they are not written----
    Judge Barrett. They are not expressed.
    Chairman Graham. Okay. So, is it fair to say there is a 
great debate in the law about how far this should go and what 
limits should apply, if any?
    Judge Barrett. That is fair to say. There is also a lot of 
debate in Supreme Court opinions. I am not aware of anybody 
proposing to throw it over entirely, but there is certainly a 
debate about how to define these rights and how far it should 
go.
    Chairman Graham. Well, let us just say that you are in the 
camp or anybody is in the camp that substantive due process as 
a legal concept is unbounded. It basically makes the 
Constitution no more certain than the five people interpreting 
it at any given time in the country. Whatever rights they think 
you have, you get. Whatever rights they want to take away from 
you, they can. It is a pretty nebulous legal concept. That is 
sort of my view of it. I am not imposing my views on yours.
    But then there is a thing called precedent. Let us say you 
did not like a case decided under substantive due process. You 
thought the whole concept was constitutionally in error. How 
does precedent play?
    Judge Barrett. So, precedent is the principle that cases 
that have been decided by the Court before this one lands on 
the docket are presumptively controlling. And so precedent 
comes from a concept called stare decisis, which is a shorthand 
for a longer Latin phrase that means ``stand by the thing 
decided and do not disturb the calm.'' So precedent is a 
principle that you are not going to overrule something without 
good reason or roil up the law without justification for doing 
so.
    Chairman Graham. So you could say the underlying analysis 
that led to any case, just Case X, I reject that analysis, but 
I will now apply precedent to whether or not it should be 
reversed. Is that what you are telling us?
    Judge Barrett. That is. Because precedent----
    Chairman Graham. Okay. What are the factors would a judge 
look at in terms of overruling a precedent?
    Judge Barrett. Well, of course, the inquiry begins because 
there has been some argument that the precedent was wrong. But 
that is not enough to justify an overruling. You also 
consider----
    Chairman Graham. You could say structurally this case--
constitutionally it was wrongly decided, but that does not end 
the debate. Is that correct?
    Judge Barrett. No, that is right. You have to look at 
reliance interests. You have to look whether the law or the 
facts----
    Chairman Graham. Let us stop right quick. Reliance 
interests by who?
    Judge Barrett. Reliance interests by those who have relied 
on the precedent. So----
    Chairman Graham. The people of the United States?
    Judge Barrett. The people of the United States who have 
ordered their affairs around it.
    Chairman Graham. So the Heller case, people have relied 
upon the Second Amendment being the individual right. Is that 
correct?
    Judge Barrett. Precedent--yes, presumably so. People have--
--
    Chairman Graham. Yes. Well, then abortion would be the 
right to have abortion. That would be a reliance factor. Right?
    Judge Barrett. The Court, in Casey, spent a lot of time 
describing the reliance of people on the right to an abortion.
    Chairman Graham. So what I want the public to know is that 
if you overrule a precedent of the Court, even if you think it 
was wrongly decided, there is a list of things you have to look 
at before you actually overrule the case. Is that a fair way of 
saying it?
    Judge Barrett. It is a fair way of saying it.
    Chairman Graham. Would you apply those factors if you ever 
found yourself in a position where you wanted to consider 
overruling a precedent?
    Judge Barrett. Absolutely.
    Chairman Graham. Okay. Have precedents of the Court been 
overruled before?
    Judge Barrett. Yes.
    Chairman Graham. Can you give me an example?
    Judge Barrett. Brown v. the Board of Education overruled 
Plessy v. Ferguson to get rid of the separate but equal 
doctrine.
    Chairman Graham. Okay. So, recusal. My colleagues are 
asking you to recuse yourself from litigation around the 
Affordable Care Act. What is the precedent regarding the 
Affordable Care Act, if any?
    Judge Barrett. The precedent that might--well----
    Chairman Graham. Is there precedent on this issue?
    Judge Barrett. There is not precedent on the issue that is 
coming up before the Court. It turns on a doctrine called 
severability, which was not an issue in either of the two big 
Affordable Care Act cases.
    Chairman Graham. Okay. So the issue that was before the 
Court was NFIB v. Sebelius. Is that correct?
    Judge Barrett. That was the first about the 
constitutionality of the mandate.
    Chairman Graham. Okay, and I think Congress has zeroed out 
what the Court called the tax. And the real issue now is does 
it stand, and can it be severable?
    Judge Barrett. Right. So the issue now is now that Congress 
has zeroed it out, can it be called a tax, or is it now a 
penalty? And then the second issue is if it is a penalty, can 
it be just cut out from the statute so that the rest of the 
statute, including protection for pre-existing conditions, 
stands?
    Chairman Graham. Well, a lot smarter people than me suggest 
that severability would be a hard challenge for those who are 
opposing the law, but time will tell. Do you feel like you 
should recuse yourself from that case because you are being 
nominated by President Trump?
    Judge Barrett. Well, Senator, recusal itself is a legal 
issue. You know, there is a statute, 28 U.S.C. 455, that 
governs when judges and Justices have to recuse. There is 
precedent under that rule.
    Justice Ginsburg, in explaining the way recusal works, said 
that it is always up to the individual Justice, but it always 
involves consultation with the colleagues, with the other eight 
Justices. So that is not a question that I could answer in the 
abstract.
    Chairman Graham. So if you are appointed by Obama, that is 
no reason to recuse yourself in a case involving Obama policy. 
Is that correct?
    Judge Barrett. Well, that would be a decision for each 
Justice to make.
    Chairman Graham. Right. But if the Justice had a conflict 
with a particular policy issue, they helped draft it, that 
would be a consideration. Is that correct?
    Judge Barrett. That would be a consideration.
    Chairman Graham. Okay. So when it comes to recusing 
yourself, you will do what the Supreme Court requires of every 
Justice?
    Judge Barrett. I will.
    Chairman Graham. Okay. Thank you very much.
    How does it feel to be nominated for the Supreme Court of 
the United States?
    Judge Barrett. Well, Senator, I have tried to be on a media 
blackout for the sake of my mental health. But you know, you 
cannot keep yourself walled off from everything, and I am aware 
of a lot of the caricatures that are floating around.
    So, I think what I would like to say in response to that 
question is that, look, I have made distinct choices. I have 
decided to pursue a career and have a large family. I have a 
multiracial family. Our faith is important to us. All of those 
things are true, but they are my choices.
    And in my personal interactions with people--I mean, I have 
a life brimming with people who have made different choices, 
and I have never tried in my personal life to impose my choices 
on them. And the same is true professionally. I mean, I apply 
the law.
    And Senator, I think I should say why I am sitting in this 
seat in response to that question, too, why I have agreed to be 
here. Because I do not think it is any secret to any of you or 
to the American people that this is a really difficult, some 
might say excruciating, process.
    And Jesse and I had a very brief amount of time to make a 
decision with momentous consequences for our family. We knew 
that our lives would be combed over for any negative detail. We 
knew that our faith would be caricatured. We knew our family 
would be attacked. And so we had to decide whether those 
difficulties would be worth it. Because what sane person would 
go through that if there was not a benefit on the other side?
    And the benefit, I think, is that I am committed to the 
rule of law and the role of the Supreme Court in dispensing 
equal justice for all. And I am not the only person who could 
do this job, but I was asked, and it would be difficult for 
anyone. So why should I say someone else should do the 
difficulty, if the difficulty is the only reason to say ``no''? 
I should serve my country.
    And my family is all in on that because they share my 
belief in the rule of law.
    Chairman Graham. Well, thank you. I think a lot of people 
would say you have got to be sort of insane to run for the 
Senate in this world. But good news for you, we have all chosen 
kind of crazy stuff to do.
    I'll just end with this. I am glad you said ``yes.'' I am 
glad President Trump chose you. And really, before the people 
of the United States is a very basic question: Is it okay to be 
religiously conservative? Is it okay to be pro-life in your 
personal life? It clearly is okay to be progressive and be pro-
choice and seek a seat on the Supreme Court. I think 
resoundingly yes.
    And here is why your nomination is so important to me. In 
my world, to be a young conservative woman is not an easy path 
to take. We have two women on this Committee. They can talk 
about it better than I. So I want to thank President Trump for 
choosing you, and I will do everything I can to make sure that 
you have a seat at the table, and that table is the Supreme 
Court.
    And if anybody in the country, in my view, deserves to have 
a seat at the table, based on the way they have lived their 
life and their capabilities in the law, it is you, Judge. God 
bless you.
    Thank you.
    Judge Barrett. Thank you, Chairman Graham.
    Chairman Graham. Senator Feinstein.
    Senator Feinstein. Thank you, Mr. Chairman.
    Judge, it is wonderful to see you here also with the family 
that I have been observing. They sit still, quiet. You have 
done a very good job.
    Judge Barrett. I have eyes in the back of my head, Senator, 
watching.
    Senator Feinstein. I was wondering if you might introduce 
us to them----
    Judge Barrett. Sure.
    Senator Feinstein [continuing]. Them to us.
    Judge Barrett. So, I have my husband, Jesse; my son, J.P.; 
my daughter, Emma; my daughter, Juliet; my daughter, Tess; my 
daughter, Vivian; and my son, Liam. And then behind them are my 
six siblings who are with me today. I will start at the side 
right behind Vivian. It is my sister, Vivian; my sister, 
Eileen; my brother, Michael; my sister, Megan; and my sister, 
Amanda. And, is Carrie in there? And my sister, Carrie, is 
sitting right over there.
    Senator Feinstein. You do not have a magic formula for how 
you do it and handle all the children and your job and your 
work and your thought process, which is obviously excellent, do 
you?
    Judge Barrett. It is improv.
    Senator Feinstein. Yes, yes. Well, let me begin with a 
question that the Chairman touched on, and it is of great 
importance, I think, because it goes to a woman's fundamental 
right to make the most personal decisions about their own body. 
And as a college student in the 1950s, I saw what happened to 
young women who became pregnant at a time when abortion was not 
legal in this country.
    I went to Stanford. I saw the trips to Mexico. I saw young 
women try to hurt themselves, and it was really deeply, deeply 
concerning.
    During her confirmation hearing before this Committee in 
1993, Ruth Bader Ginsburg was asked several questions about her 
views on whether the Constitution protects a woman's right to 
abortion.
    She unequivocally confirmed her view that the Constitution 
protects a woman's right to abortion, and she explained it like 
this, and I quote: ``The decision whether or not to bear a 
child is central to a woman's life, to her well-being and 
dignity. It is a decision she must make for herself. When 
government controls that decision for her, she is being treated 
as less than a fully adult human responsible for her own 
choice,'' end quote.
    At one point, our former colleague Orrin Hatch, then the 
Ranking Member of this Committee, commended her for her being, 
quote, ``very forthright in talking about that,'' end quote. So 
I hope, and you have been thus far, you will be equally 
forthright with your answers.
    In Planned Parenthood of Southeastern Pennsylvania v. 
Casey, Justice Scalia, as was said earlier, joined the dissent, 
which took the position, and I quote, ``We believe that Roe was 
wrongly decided and that it can and should be overruled, 
consistent with our traditional approach to stare decisis in 
constitutional cases.''
    Do you agree with Justice Scalia's view that Roe was 
wrongly decided?
    Judge Barrett. So, Senator, I do want to be forthright and 
answer every question so far as I can. I think on that 
question, you know, I am going to invoke Justice Kagan's 
description, which I think is perfectly put. When she was in 
her confirmation hearing, she said that she was not going to 
grade precedent or give it a thumbs up or a thumbs down.
    And I think in an area where precedent continues to be 
pressed and litigated, as is true of Casey, it would be 
particularly--it would actually be wrong and a violation of the 
Canons for me to do that as a sitting judge. So, if I express a 
view on a precedent one way or another, whether I say I love it 
or I hate it, it signals to litigants that I might tilt one way 
or another in a pending case.
    Senator Feinstein. So, on something that is really a major 
cause, with major effect on over half of the population of this 
country, who are women after all, it is distressing not to get 
a straight answer. So, let me try again. Do you agree with 
Justice Scalia's view that Roe was wrongly decided?
    Judge Barrett. Senator, I completely understand why you are 
asking the question. But again, I cannot pre-commit or say, 
yes, I am going in with some agenda, because I am not. I do not 
have any agenda. I have no agenda to try to overrule Casey. I 
have an agenda to stick to the rule of law and decide cases as 
they come.
    Senator Feinstein. Well, what I'm--as a person, I do not 
know if you will answer this one either. Do you agree with 
Justice Scalia's view that Roe can and should be overturned by 
the Supreme Court?
    Judge Barrett. Well, I think my answer is the same because, 
you know, that is a case that is litigated. It could, you know, 
its contours could come up again. In fact, do come up. They 
came up last term before the Court.
    So, I think, you know, what the Casey standard is, and that 
just is a contentious issue, which is, I know, one reason why 
it would be comforting to you to have an answer. But I cannot 
express views on cases or pre-commit to approaching a case any 
particular way.
    Senator Feinstein. Well, that makes it difficult for me and 
I think for other women also on this Committee because this is 
a very important case, and it affects a lot of people, millions 
and millions of women. And you could be a very important vote.
    And I had hoped you would say as a person--you have got a 
lovely family. You understand all the implications of family 
life. You should be very proud of that. I am proud of you for 
that. But my position is a little different. You are going on 
the biggest court of this land with a problem out there that 
all women see one way or another in their life. And--not all, 
but certainly married women do and others, too.
    And so the question comes, what happens? And will this 
Justice support a law that has substantial precedent now? Would 
you commit yourself on whether you would or would not?
    Judge Barrett. Senator, what I will commit is that I will 
obey all the rules of stare decisis, that if a question comes 
up before me about whether Casey or any other case should be 
overruled, that I will follow the law of stare decisis, 
applying it as the Court has articulated it, applying all the 
factors--reliance, workability, being undermined by later facts 
in law, just all the standard factors. And I promise to do that 
for any issue that comes up, abortion or anything else. I will 
follow the law.
    Senator Feinstein. Well, I think that is expected. And 
well, I guess I have gone as far as I can. Let me go to another 
issue.
    This country is facing great gun violence. There has been a 
surge in gun sales during the COVID-19 crisis, which has led to 
more lives being needlessly lost. According to the Gun Violence 
Archive, an independent research organization, there were 60 
mass shootings in May alone. These shootings killed 40 people. 
They hurt 250 more.
    Also, there has been a troubling spike in gun sales. 
Americans bought approximately 2 million guns this past March. 
It is the second-highest month ever for gun sales. That figure 
does not take into account all the gun sales that could not be 
completed because the purchaser failed a background test--
check, excuse me, a number that has also skyrocketed.
    For example, this past March, the FBI's background check 
system blocked 23,692 sales, more than double the 9,500 sales 
blocked in March 2019. Do you agree that Federal, State, and 
local governments have a compelling interest in preventing a 
rise in gun violence, particularly during a pandemic?
    Judge Barrett. Well, Senator, of course, the 
constitutionality of any particular measure that were passed--
that was passed by State or local governments or by this body 
would be subject to the same judicial process that I described 
with Senator Graham.
    What I will say, because this is just descriptive of 
Heller, Heller leaves room for gun regulations. And that is why 
there has been a lot of litigation in the lower courts, which 
makes me constrained not to comment on the limits of it. But 
Heller does not make a right absolute by its--you know, it says 
so in the opinion.
    Senator Feinstein. Well, let me ask one more question. In a 
recent dissenting opinion that you wrote, you said there was, 
quote, ``no question,'' that, quote, ``keeping guns out of the 
hands of those who are likely to misuse them,'' end quote, is, 
quote, ``a very strong governmental interest.'' Do you stand by 
that statement?
    Judge Barrett. So, I do not--let us see. I cannot remember 
precisely if the words of Kanter, which is the case in which I 
dissented, which I think you are----
    Senator Feinstein. That is correct, Kanter v. Barr.
    Judge Barrett. Kanter v. Barr. What I said in that opinion 
I stand by, which is that the original meaning of the Second 
Amendment, and I went through a lot of detailed history in that 
case, does support the idea that governments are free to keep 
guns out of the hands of the dangerous. So, for example, the 
mentally ill, others who would be likely to misuse guns.
    Senator Feinstein. So, where does that leave you on Roe? 
The Chairman asked, I thought, a very good question. For many 
people, and particularly for women, this is a fundamental 
question. We all have our moral values. We have our religions. 
We live by that. I respect you and your family for doing just 
that.
    But this is a very real problem out there. And if you could 
be more specific in any way with respect how you would view 
your place on the Court with respect to controlling weapons in 
this country?
    Judge Barrett. I think what I can say is that my opinion in 
Kanter shows how I approach questions as a matter of judicial 
philosophy. I mean, I spent a lot of time on that opinion 
looking at the history of the Second Amendment and looking at 
the Supreme Court's cases. And so the way in which I would 
approach the review of gun regulation is in that same way, to 
look very carefully at the text, to look carefully at what the 
original meaning was.
    That was the method that both the majority and dissent in 
Heller took. So I promise that I would come to that with an 
open mind, applying the law as I can best determine it.
    Senator Feinstein. Okay. Let me move on.
    One of my constituents, Krystyna Garcia, was able to obtain 
insurance coverage and have surgery that saved her eyesight 
only before the Affordable Care Act. Her experience is not 
unique.
    Senator Tammy Baldwin has a constituent, Jimmy Anderson, in 
her home State of Wisconsin, and she asked that this story be 
shared.
    [Poster is displayed.]
    Senator Feinstein. Jimmy is a 34-year-old and member of the 
Wisconsin State legislature. In 2010, a drunk driver hit the 
family's car as they were returning home from celebrating 
Jimmy's 24th birthday. Jimmy's mother, father, and little 
brother were killed in the accident. Jimmy was paralyzed from 
the waist down.
    His medical recovery was intense. As Jimmy has said, quote, 
``Doctors managed to patch me up with dozens of stitches and 
multiple surgeries and about a pound of steel on my spine,'' 
end quote.
    But soon after, his insurance company told him he was 
nearing his lifetime maximums, and he would have to pay for the 
rest of his healthcare expenses. As Jimmy explains, quote, 
``With hundreds of thousands of dollars still left to go, I do 
not know what I was going to do. I was scared. I was terrified. 
I was just a student. I did not have that kind of money.''
    Fortunately, a few days later, the insurance company sent 
him another letter. This one informed him that the provisions 
of the ACA had kicked in, which meant there were no longer 
lifetime maximums and his care would be covered. In Jimmy's own 
words, ``I was able to put my life back together, and I credit 
the Affordable Care Act for that.''
    Judge Barrett, how should the loss of ACA's protection 
against lifetime coverage caps, caps that could be used to end 
coverage for life-saving care, factor into a court's 
consideration of the validity of the ACA?
    Judge Barrett. Senator, so far as I know, the case next 
week does not present that issue. It is not a challenge to pre-
existing, existing--pre-existing conditions coverage or to the 
lifetime maximum, you know, relief from a cap.
    Senator Feinstein. Well, what is your view?
    Judge Barrett. Of how it should factor in? Let us see. I 
think that any issue that would arise under the Affordable Care 
Act or any other statute should be determined by the law, by 
looking at the text of the statute, by looking at precedent, 
the same way that it would for anyone. And if there were policy 
differences or policy consequences, those are for this body. 
For the Court, it is really a question of adhering to the law 
and going where the law leads and leaving the policy decisions 
up to you.
    Senator Feinstein. For me, my vote depends a lot on these 
responses because these are life-or-death questions for people. 
It is my understanding that you were critical of Justice 
Roberts for upholding the ACA, stating that he, quote, ``pushed 
the Affordable Care Act beyond its plausible meaning to save 
the statute,'' end quote.
    And in what way did the Chief Justice go beyond the ACA's 
plausible meaning?
    Judge Barrett. So, I have written about this, and that 
description is consistent with the way that the Chief Justice 
describes in his own majority, that was King v. Burwell, where 
the Court had to decide whether the phrase ``established by a 
State'' also included Exchanges that were established by the 
Federal Government.
    And the majority in that case acknowledged that treating 
the phrase ``established by a State'' as including Exchanges 
established by the Federal Government was not the most natural 
reading. But for other reasons, other policy reasons, in canons 
of interpretation, they chose to adopt the less natural 
reading.
    Senator Feinstein. You see, for me, the case coming up, 
California v. Texas, puts a whole new weight on your nomination 
because the Affordable Care Act is now being so well accepted. 
I represent the largest State, as does Senator Harris, that we 
have, and there are just over 10 million people dependent on 
the activities under this Act and that they be sustained. And 
so there is really great concern about what your view is.
    That case is coming up. Can you give us at least your view?
    Judge Barrett. Well, Senator, the issue in the case that is 
coming up does not involve--it is not the same issue as the 
ones in NFIB v. Sebelius or King v. Burwell. It is a different 
issue. So----
    Senator Feinstein. Well, then give us both.
    Judge Barrett. Well, let's see. So, what I have said, which 
you quoted to me, was that I thought that the interpretation of 
the phrase ``established by a State'' was stretched when the 
Court held that it was established by the Federal Government.
    That is not the issue in California v. Texas. The issue in 
California v. Texas is, if whether now that Congress has just 
completely, you know, zeroed out the mandate, whether it is 
still a tax or a penalty. And even if so, is it constitutional, 
and then even so, is that fatal to the statute?
    There is a doctrine called severability, which sounds like 
legalese, but what it means is, is it okay with the statute? 
Could you just pluck that part out and let the rest of the 
statute stand, or is that provision which has been zeroed out 
so critical to the statute that the whole statute falls?
    So, really, the issue in the case is this doctrine of 
severability, and that is not something that I have ever talked 
about with respect to the Affordable Care Act. Honestly, I have 
not written anything about severability that I know of at all.
    Senator Feinstein. So you have no thoughts on the subject?
    Judge Barrett. Well, it is a case that is on the Court's 
docket, and the Canons of Judicial Conduct, you know, would 
prohibit me from expressing a view.
    Senator Feinstein. Okay, I will move on. On July 30, 2020, 
President Trump made claims of voter fraud and suggested he 
wanted to delay the upcoming election. Does the Constitution 
give the President of the United States the authority to 
unilaterally delay a general election under any circumstances? 
Does Federal law?
    Judge Barrett. Well, Senator, if that question ever came 
before me, I would need to hear arguments from the litigants 
and read briefs and consult with my law clerks and talk to my 
colleagues and go through the opinion writing process. So, you 
know, if I give off-the-cuff answers, then I would be basically 
a legal pundit, and I do not think we want judges to be legal 
pundits. I think we want judges to approach cases thoughtfully 
and with an open mind.
    Senator Feinstein. Okay. Let me try something else. In 
2017, in a case called EEOC v. AutoZone, the Seventh Circuit, 
your circuit, issued an opinion which permitted an employer to 
intentionally assign its employees to specific stores due to 
their race. The dissent in this opinion argued the decision 
permitted employers to legally establish separate but equal 
facilities and argued, if upheld, this decision would be, 
quote, ``contrary to the position that the Supreme Court has 
taken in analogous equal protection cases as far back as Brown 
v. Board of Education.''
    The case was appealed to the full panel of the Seventh, and 
you sided, as I understand it, with the majority to deny a 
rehearing and let the opinion stand. Is that correct?
    Judge Barrett. That is correct. And I think I need to give 
a little context for what it means to vote to deny to rehear 
something en banc.
    Our court, just like the Supreme Court in the certiorari 
process, does not take cases just because we think the panel 
got it wrong. There is a lot of deference to panels, and Rule 
35 of the Rules of Appellate Procedure constrains and limits 
the times in which we take the resources of the full court to 
rehear a case.
    So, I was not on that panel, and I did not express a view 
on the merits. A vote to deny to hear something en banc is like 
a vote not--to deny certiorari, not a vote that expresses a 
view on the merits.
    Senator Feinstein. Okay.
    Judge Barrett. It was a statutory case. It was not an equal 
protection case.
    Senator Feinstein. Let me ask you a question, as a person.
    Judge Barrett. Yes.
    Senator Feinstein. If an employer can transfer an employee 
based solely on his or her race, and that does not constitute a 
materially adverse employment action because it was purely 
lateral job transfer, please explain what factors must be 
present for a policy based on race to violate Brown v. Board's 
prohibition of separate but equal.
    Judge Barrett. Well, Senator, to my knowledge, Brown was 
not at issue in the majority opinion. It turned on statutory 
language in Title VII. But again, I did not express a view on 
the merits, and so I cannot comment on whether I think that the 
panel majority got that right or got that wrong. You know, that 
is an issue that may well come before me, even in the Seventh 
Circuit. Some may press for its overruling, and I may be on a 
panel that has to decide whether that precedent was wrong.
    Senator Feinstein. Well, let me ask you, as a person, do 
you have a general belief?
    Judge Barrett. As a person, I have a general belief that 
racism is abhorrent.
    Senator Feinstein. That racism is what?
    Judge Barrett. Abhorrent.
    Senator Feinstein. Well, I think that is--I think we would 
all agree with that. So, how should a lower court in the 
Seventh determine when race-based policies could constitute a 
materially adverse employment action?
    Judge Barrett. Well, I am not aware of cases presenting the 
exact same facts as that AutoZone----
    Senator Feinstein. Just asking you for your view.
    Judge Barrett. You know, I know that the material adverse 
consequence was the standard at issue in that case. I have to 
confess that I would need to look at the statute and the 
precedent to--well, even if I had a specific hypothetical in 
front of me, I could not really say without looking at the 
statute and the precedent what factors are involved because I 
was not on that panel and have not decided a similar case.
    Senator Feinstein. Okay. Let me go to another issue. The 
issue of LGBT equality is very personal for me. I spent 2 
decades as a county supervisor and mayor of a city. I watched 
firsthand as the LGBT community fought for legal recognition of 
their lives, their relationships, their personal dignity. I was 
there before the law, so I saw in San Francisco what was 
happening.
    [Poster is displayed.]
    Senator Feinstein. I want to speak briefly about one 
couple, Del Martin and Phyllis Lyon, who I met in the 1970s. 
They were vibrant members of San Francisco's community. I was 
president of the Board of Supervisors. They worked with me to 
pass a citywide ordinance in 1978 that provided critical 
protection against discrimination in employment, housing, and 
public accommodations. At that time, this was one of the 
strongest protections for the gay community in the entire 
Nation.
    We have come a long way since then, and I think we should 
never go back. In June of 2008, 58 years after they met, my two 
friends were finally able to marry when the California Supreme 
Court ruled that same-sex couples cannot be denied the 
fundamental right to marry. Del died 2 months later.
    Because of the Federal Defense of Marriage Act, DOMA, 
Phyllis was denied Social Security survivor benefits, even 
though her spouse had paid into this basic safety net for her 
entire working life. Phyl had to rely on the help of friends 
and fellow activists.
    In 2013, as you probably know because you know so much 
about this, U.S. v. Windsor, the Supreme Court struck DOMA 
down. Two years later, in Obergefell v. Hodges, the Supreme 
Court recognized that the fundamental right to marry could not 
be denied to LGBT Americans.
    Both decisions were decided by a 5-to-4 margin. Justice 
Ginsburg was in the majority. Justice Scalia dissented in both 
cases.
    Now you said in your acceptance speech for this nomination 
that Justice Scalia's philosophy is your philosophy. Do you 
agree with this particular point of Justice Scalia's view that 
the U.S. Constitution does not afford gay people the 
fundamental right to marry?
    Judge Barrett. Senator Feinstein, as I said to Senator 
Graham at the outset, if I were confirmed, you would be getting 
Justice Barrett, not Justice Scalia. So, I do not think that 
anybody should assume that just because Justice Scalia decided 
a decision a certain way that I would, too.
    But I am not going to express a view on whether I agree or 
disagree with Justice Scalia for the same reasons that I have 
been giving. Justice Ginsburg, with her characteristic 
pithiness, used this to describe how a nominee should comport 
herself at a hearing: ``No hints, no previews, no forecasts.''
    That had been the practice of nominees before her, but 
everybody calls it the ``Ginsburg rule'' because she stated it 
so concisely, and it has been the practice of every nominee 
since. So I cannot, and I am sorry to not be able to embrace or 
disavow Justice Scalia's position, but I really cannot do that 
on any point of law.
    Senator Feinstein. Well, that is really too bad because it 
is rather a fundamental point for large numbers of people, I 
think, in this country. I understand you do not want to answer 
these questions directly, but the great--you identify yourself 
with a Justice that you, like him, would be a consistent vote 
to roll back hard-fought freedoms and protections for the LGBT 
community.
    And what I was hoping you would say is that this would be a 
point of difference where those freedoms would be respected, 
and you have not said that.
    Judge Barrett. Senator, I have no agenda, and I do want to 
be clear that I have never discriminated on the basis of sexual 
preference and would not ever discriminate on the basis of 
sexual preference. Like racism, I think discrimination is 
abhorrent.
    On the questions of law, however, I just, because I am a 
sitting judge and because you cannot answer questions without 
going through the judicial process, cannot give answers to 
those very specific questions.
    Senator Feinstein. Okay. Thank you very much.
    Thanks, Mr. Chairman.
    Chairman Graham. Thank you, Senator Feinstein. Senator 
Grassley.
    Senator Grassley. Yes. Judge, welcome, again.
    You can rest for a minute because I have some things to say 
to my colleagues, but more importantly, so people around the 
country understand what's going on here.
    First of all, your family and friends, I'm sure they are 
very proud and they ought to be. I think everybody recognizes 
your sharp intellect, your deep understanding of, and even 
great reverence for the Constitution. Your legal experience and 
public service are impressive. Your dedication to mentoring 
young students and women in the legal profession ought to be 
admired by everybody. In all respects, you are exceptionally 
qualified to be a Justice.
    Many groups and individuals have written in strong support 
of your nomination. So, I guess now that the Chairman is gone 
I'm going to ask, as the next one ranking, I have some letters 
from 21 State lieutenant governors and from 20 State 
secretaries of State that I want to put in the record at this 
point.
    [The information appears as submissions for the record.]
    Senator Grassley. Before I question, I have a few points to 
make.
    Yesterday, my Democrat colleagues spoke about their concern 
that you, Judge, wouldn't uphold certain laws, including the 
Affordable Care Act. And that you would strip Americans of 
their healthcare rights and those protections that come with 
it.
    These opponents said that Republicans just want to confirm 
you so that you, quote, ``will carry their policies forward,'' 
meaning--you will carry Republican policies forward on the 
Supreme Court. But this only shows Democrats fundamentally 
misunderstand what judges are supposed to do.
    A judge is supposed to interpret laws in an impartial 
manner consistent with the Constitution. Republicans aren't 
interested in seeing judges, quote, unquote, ``carry their 
policies forward.'' Republicans want judges to interpret the 
law and the Constitution, not make law. We want judges that 
won't impose their own policies and personal preferences in 
their decision-making.
    Plain and simple, policymaking is not the proper role of 
the judicial branch. That role is reserved for the legislative 
and executive branches, as the Judge said, the political 
branches, elected by and accountable to the people. Because you 
have a lifetime appointment. And, if you do lawmaking, we can't 
vote you out of office. Lawmaking is our job. If people don't 
like what we do, they can vote us out of office.
    Some other points on the Affordable Care Act.
    The Democrats continue to misrepresent or claim to know 
Judge Barrett's views on the Affordable Care Act and access to 
healthcare. In fact, they made it their entire game plan 
yesterday, and I suppose today we will see it again. But we 
should dispense with the total fiction the Democrats are 
peddling. Apparently, her technical concerns with Chief Justice 
Roberts' legal reasoning in the Obamacare decision disqualifies 
her. Democrats are painting the Judge as heartless and on a 
mission to scrap the healthcare law. Frankly, that's absurd. 
Not only is Judge Barrett a mother of seven, she has children 
with pre-existing medical challenges of their own. No one on 
this Committee, or anyone, has any right to suggest that she 
doesn't care about access to healthcare or protections for the 
vulnerable.
    Now getting back to the technical concerns about Roberts' 
Affordable Care Act opinion, first--and I've got four points 
along this line--her comments dealt with Roberts' statutory 
interpretation of just one provision of the law. That provision 
is no longer even in effect. In 2017, Congress zeroed out the 
so-called tax, the tax connected with the individual mandate. 
The questions before the Court this fall are entirely separate. 
She's never ruled on the Affordable Care Act, nor commented on 
how she would vote, meaning the Judge, how she would vote. So, 
it's pointless to speculate, but we are going to get a lot of 
speculation during this election season, just 2\1/2\ weeks 
before the election.
    Now, a second point. Lawyers and legal academics often 
criticize a court's reasoning, even when they have no 
disagreement with the outcome of the case. For instance, The 
New York Times recently reported, Justice Ginsburg, before 
joining the Supreme Court, quote, ``wasn't really fond of Roe 
v. Wade. She didn't like how it was structured,'' end of quote. 
I don't know why Democrats have a different standard for you, 
Judge Barrett.
    Now, a third point. It's blatantly inconsistent for the 
left to use this line of attack. We all know that President 
Obama said that the ACA legislative mandate was not a tax. Even 
liberal Jeffrey Toobin said Roberts' argument was, quote, ``not 
a persuasive one,'' end of quote. So, Judge Barrett's analysis 
of Roberts' legal reasoning is well inside the mainstream.
    Now, a fourth point. More inconsistency. The same Democrats 
vilify Judge Barrett as a threat to those with pre-existing 
conditions. Well, it seems that those same people just 
filibustered the COVID relief bill that would have protected 
pre-existing conditions. They are the ones that blocked the 
COVID relief. The Republicans stood ready to move forward with 
that bill, and remain ready. Seems to me it's the other side 
who are really playing politics with healthcare during a 
pandemic. The truth is, Judge Barrett already said, quote, ``A 
judge must apply the law as written,'' end of quote. She 
further commented, quote, ``to decide cases according to the 
rule of law, beginning to end,'' end of quote. That's what we 
should all look for judges to do.
    Now, for my first question. When Justice Scalia came to my 
office before his confirmation, and I think I brought this up 
with every nominee to the Supreme Court, Republican or Democrat 
nominees, I don't think I brought it up in my private 
conversation with you, but I always bring up, What's your 
attitude about legislative history?
    Judge Barrett. Um----
    Senator Grassley. Let me ask my question first.
    Judge Barrett. Oh, sorry.
    Senator Grassley. I'm sorry.
    Judge Barrett. I thought that was it.
    Senator Grassley. I think you probably know, Judge, how 
important it is for me, I want to know how important 
legislative history is to you. When is it appropriate to look 
to legislative history if you interpret the statute, and are 
there some circumstances more important than others, and I 
would like you to also give your view on legislative history 
compared to what I heard from Scalia, 35 years ago.
    Judge Barrett. Sure. So I am very comfortable talking about 
the use of legislative history, because that is a matter of 
interpretive philosophy. What governs, of course, is the text 
of the statute, so, you know, the legislative history can never 
supersede the text and it should never substitute for the text 
of the statute.
    Justice Scalia, as was well known, you know, railed against 
the use of legislative history, and I think it was because, at 
the time that Justice Scalia went on to the D.C. Circuit, 
before he was on the Supreme Court, the use of legislative 
history had really kind of gotten out of control and many 
courts, you know, were saying things--Justice Scalia, in his 
book, quotes this line from a brief, you know, ``The 
legislative history being unclear, we turn to that other 
reliable guide in statutory interpretation, the statute.'' And 
that has things backwards, and so I think Justice Scalia really 
tried to clean that up and say, listen, the priority is the 
text, and when the text answers the question, you don't go to 
legislative history.
    And there are some pragmatic reasons to be careful about 
doing so. You know, legislative history can be long. There is a 
famous quotation from Judge Leventhal that legislative history 
is like going to a cocktail party and picking out your friends. 
It can be easy to manipulate because there might be something 
in there for everyone.
    So, as a general rule, I don't look to legislative history 
when I am deciding cases. I wouldn't say that it would never be 
relevant. Even Justice Scalia himself said that there could be 
instances, for example, if you were trying to determine whether 
a term used in a statute, how it was used, if it had a 
technical meaning or how it was understood, that that might be 
an appropriate time to consult legislative history. Or, Justice 
Scalia himself consulted it when he was trying to determine 
whether there had been an error in the way the statute was 
drafted. He looked to legislative history to see whether what 
seemed unthinkable actually was unthinkable.
    Senator Grassley. Now, I would like to go to a specific 
case. I would like to go to United States v. Uriarte, which 
involved the interpretation of Section 403 of the First Step 
Act, which you know I had a big part, along with Senator Lee 
and Senator Durbin, in getting that passed in 2018. This is the 
most significant criminal justice legislation in a generation. 
Our criminal justice system can't just punish and deter. It 
must also rehabilitate and promote successful reentry into 
society. The First Step Act accomplished these goals through 
prison and sentencing reform. It was well known that the goal 
of the First Step Act was to make smart and cost-effective 
changes to the criminal code and to reduce the risk of 
recidivism.
    So, I want to ask you about your dissent in this case. The 
issue was whether the sentencing reform provision of the First 
Step Act applied to a defendant whose sentence had been 
vacated. Here the defendant had been convicted, but not 
resentenced, at the time of the First Step Act becoming law. 
The majority opinion cited the plain meaning of the First Step 
Act and congressional intent in finding that Section 403 would 
apply to a defendant with a vacated sentence. Your dissent, as 
I understand it, argued, among other things, that congressional 
intent shouldn't be heavily relied on since, quote, ``every 
statute requires a resolution of competing policy interests,'' 
end of quote.
    President Trump signed the First Step Act into law only 2 
years ago. So, wouldn't re-referencing congressional intent be 
accessible and relevant? And then another question. Why did you 
find the majority's reliance on legislative history 
unpersuasive?
    Judge Barrett. So, we did, the majority--it was a very, 
very difficult case. It was voted on en banc by our full court. 
And the quote from my dissent that you are pointing to was 
actually--we had a dispute about what the plain text of the 
statute required. And so that portion of my dissent that you 
just read was saying that I thought that the majority had 
permitted the policy goals of the Act to supersede the text, 
and in dissent I argued that the text drew the line after 
someone had been sentenced. So if someone had already been 
sentenced on the date of the First Step Act's passage, and the 
relevant language was, you know, if a sentence had already been 
imposed, I thought, with my dissenting colleagues, this was 
consistent with the approach the Third Circuit had already 
taken, that that meant if the person had already been through 
sentencing. You know, this case involved a resentencing, and 
resentencing can happen years after. And so it didn't seem to 
my dissenting colleagues and I that looking in the statute that 
the plain language of the text supported the majority's 
approach to it.
    Senator Grassley. Now, I think on my next question on the 
same case, you may have just partially answered it, but, let me 
go ahead with my lead-in and then also a question.
    Both the majority and your dissent in the case reviewed 403 
of the Act under a plain reading of the text. As an author and 
leader in this law's passage, I would like to discuss how a 
plain reading of the statute could lead to varying outcomes. 
The section in question contemplates when a sentence has been 
imposed on a defendant. According to the text of the statute 
and relevant caselaw, a defendant's sentence, if vacated, 
creates a clean slate. That means the defendant is placed in 
the same position as if he had never been sentenced. But your 
dissent comes to the opposite conclusion on whether a sentence 
has been imposed. Note that I agree with you that the laws need 
to be read and interpreted literally.
    So, my question is this: How could we come to different 
conclusions?
    Judge Barrett. Well, that language, you know, that it did 
not apply to defendants on whom sentences had already been 
imposed, my dissenting colleagues and I said, well, the 
language is sentences. It doesn't say, you know, invalid 
sentences. And one could certainly say, if asked if someone had 
been sentenced, yes, he was sentenced but that sentence was 
later vacated.
    And you are right that the majority relied heavily on this 
clean slate principle, but in my review of the law this clean 
slate principle wasn't really present, because, you know, the 
Sentencing Reform Act, for example, instructs district courts 
applying the guidelines at sentencing to apply those that were 
in effect on the date of the original sentencing. So I thought 
that the clean slate principle, they were pushing a little too 
hard on it. And then, you know, there is certainly unfairness.
    You know, the First Step Act, its policy is clearly to 
bring justice to sentencing. But whenever you draw a line on 
who gets the benefit of a law--and this is especially acutely 
true in the sentencing area--it is very difficult, and, you 
know, some people right on either side of the line will not get 
the benefit of the law, wherever you draw it.
    So, for example, in this case, Mr. Uriarte had a co-
defendant named Sparkman. His case came up right together. They 
had been tried together and initially sentenced together, but 
Uriarte's appeal took longer to resolve, or his resentencing 
took longer because of a lot of delays. So there was unfairness 
there, too, in the majority's approach because Uriarte, despite 
the fact that he was more culpable than Sparkman, wound up with 
a sentence that was like 15 years less.
    Senator Grassley. That's the end of my questioning on that. 
But, let me make a comment before I go to my next question.
    My position has always been that legislative history can be 
instructive with respect to the intent of the statute. So, 
judges should not completely disregard it. Certainly, I 
acknowledge that the legislative branch can be more careful 
about drafting laws, but, I also think that judges should pay 
attention to congressional intent as set forth in history when 
there might be a dispute about how to interpret the statute.
    Justice Ginsburg, at her hearing, and you have discussed 
this a little bit already, but I think it deserves emphasis 
because you are going to go through a lot of this business of 
maybe not being, and I know legitimately, not being able to 
comment on a prospective case. She said, quote, ``A judge sworn 
to decide impartially can offer no forecasts, no hints, for 
that would show not only disregard for the specifics of this 
particular case, it would display disdain for the entire 
judicial process,'' end of quote. We all know that that's the 
Ginsburg standard.
    The underlying reason for this rule is that making promises 
or giving hints on how a judge would rule in a case undermines 
the very independence of our system. But you are going to be 
asked about your personal views, as you just have been, on 
various topics, and how you might decide a case. Of course, you 
know that judicial nominees should never promise their future 
votes on the bench in exchange for the President's nomination 
or a Senator's support. You would be showing the opposite of 
independence.
    My question: So, I ask you, do you agree with the Ginsburg 
standard, that it goes to the question of the judicial branch's 
independence from the legislative branch? And all you've got to 
do is say yes, because I have heard you talk about it?
    Judge Barrett. Yes, I agree the Ginsburg rule reinforces 
judicial independence.
    Senator Grassley. Yes. Here is something that a lot of 
people are suspicious, so I want to ask you. Have you made any 
promises or guarantees to anyone about how you might rule on a 
case or issue that might come before you if you are confirmed 
to the Supreme Court?
    Judge Barrett. I want to be very, very clear about this, 
Senator Grassley. The answer is no, and I submitted a 
questionnaire to this Committee in which I said no, no one ever 
talked about any case with me, no one on the executive branch 
side of it. And that is one reason--you know, one reason you 
ask that question, I think, as a Committee, is that you want to 
know that no nominee has made any precommitments. And so just 
as I didn't make any precommitments and was not asked to make 
any commitments on the executive branch side, I can't make any 
pre-commitments to this body either. It would be inconsistent 
with judicial independence.
    Senator Grassley. Now, I know the answer to my last 
question, and, Mr. Chairman, I'm going to reserve the rest of 
my time. The Democrats claim that you are being put on the 
Supreme Court so you can vote to repeal the Affordable Care 
Act. Is that your agenda, if confirmed? Is your goal repealing 
the Affordable Care Act? Have you committed to the President or 
anyone else that you will vote to repeal the Affordable Care 
Act, if confirmed to the Court?
    Judge Barrett. Absolutely not. I was never asked, and if I 
had've been, that would have been a short conversation.
    Senator Grassley. I think that your record shows you will 
be a faithful judge that takes each case seriously and 
approaches each case in an unbiased way rather than with a 
policy agenda in mind.
    We can reserve our time?
    Chairman Graham. Absolutely.
    Senator Grassley. Okay.
    Chairman Graham. Senator Leahy.
    Senator Feinstein. Letters for the record.
    Chairman Graham. I will introduce--the letters by Senator 
Feinstein will be introduced into the record. Without 
objection.
    [The information appears as submissions for the record.]
    Chairman Graham. Senator Leahy, are you with us?
    Senator Leahy. I think I am. Do you hear me there?
    Chairman Graham. Yes, sir. Let's see if we can get you up 
on the screen here. There you go. The floor is yours.
    Senator Leahy. Thank you. Thank you very much. And Judge, I 
was watching as you introduced your family. Thank you for doing 
that. It is obvious your family is very important to you, as it 
should be. My wife and I have been married for 50 years, and 
our children and our grandchildren are the most important 
things in our life. And it is good to see you introduce the 
family.
    Now as a Senator, of course, another important part of my 
life is referring to, and representing, the people of Vermont. 
And let me talk to you about some of the things that I have 
been hearing from Vermonters, and you have to understand in 
Vermont, Vermonters will just walk up to you in the grocery 
store, coming out of church, or whatever, and are perfectly 
happy to express their views. And they are concerned about what 
the Republicans' Affordable Care Act lawsuit on November 10th 
would mean for them.
    Now do you know how many Americans have obtained insurance 
through the Affordable Care Act?
    Judge Barrett. I do not.
    Senator Leahy. It is more than 20 million. And do you know 
how many children under the age of 26 are going to stay on 
their parents' insurance because of the Affordable Care Act?
    Judge Barrett. I do not.
    Senator Leahy. It is 2.3 million. And do you know how many 
Americans are covered under the Affordable Care Act's Medicaid 
expansion?
    Judge Barrett. I do not.
    Senator Leahy. It is a little more than 15 million.
    And I look at that because I look at the people calling me 
from Vermont. I think of Alex Johnson. She is a single mother. 
She is a childhood cancer survivor. She works as a nanny in 
South Burlington, Vermont. She relies on Medicaid for her 
doctor's visits, her blood drawings, her other testing, all 
that done to make sure her leukemia stays in remission.
    She tells me she stays awake at night worrying about losing 
Medicaid. Now if the Republicans are successful in what they 
are trying to do on November 10th, then Alex, and actually 
60,600 other Vermonters enrolled in Medicaid expansion, are 
going to be left behind. And to contract COVID-19, that is seen 
as a pre-existing condition.
    Do you know approximately how many million Americans have 
tested positive for the coronavirus and survived?
    Judge Barrett. I do not.
    Senator Leahy. It is more than 7,700,000. Those are people 
who are now considered to have a pre-existing condition.
    And one of the most common pre-existing conditions is 
diabetes. The CDC estimates that 34 million Americans, that is 
about 1 in 10 Americans, have diabetes. They show that the 
ACA's Medicaid expansion is the single most important factor 
for expanding access to affordable insulin. And Leslie, a 
Vermonter, diagnosed with late-onset Type 1 diabetes at the age 
of 25, for years she depended on Medicaid to keep her alive and 
out of bankruptcy.
    Now President Trump recently claimed that he has made 
insulin as cheap as water. I wish he had told the truth on 
that. We all know it is not. Leslie now has insurance to pay 
for insulin, and without this insurance, do you know how much--
because unlike what the President says, insulin is not as cheap 
as water. Do you have an idea of how much Leslie's out-of-
pocket expenses for insulin would increase?
    Judge Barrett. No, I do not.
    Senator Leahy. Thank you. And I wouldn't expect you to. 
There is no reason why you should. But Leslie's cost would more 
than triple. It would go up by $11,215 a year. That is in a 
State where the per capita income is $33,000.
    So I am not suggesting that you are callous or indifferent 
to the consequences if the Affordable Care Act is overturned. 
You know these are real cases, and I think you are a 
sympathetic person. But I do believe that the President 
selected you because he wanted somebody with your philosophy, 
and he had a reason for it. Now some are going to pretend that 
it is a mystery, some of my colleagues have, what Justice 
Barrett would do when the Supreme Court takes up the latest 
attack on the ACA. President Trump has made it crystal clear. 
He has promised that his nominees would overturn the ACA. It is 
even in the official Republican Party platform. And he said of 
the case to be argued next month, he said, ``We want to 
terminate healthcare under Obamacare, ACA.'' And within hours 
of nominating you, he again repeated the ACA would be 
overturned.
    I know I mentioned my friend the Chairman, Senator Graham, 
knows the President as well as anyone here. He goes golfing 
with him. He spends a lot of time with him. And I think 
Chairman Graham knows that the President would not repeatedly 
promise the American people that his judges would overturn the 
ACA if he didn't mean it. And I think Senator Graham would have 
to agree that the President is confident Judge Barrett would 
side with him on November 10th.
    That is not necessarily a question to either one of you, 
but of course the Chairman has an opportunity to respond in his 
time if he wants.
    But I think we know the President is confident. There has 
not been an issue in the last decade that has made Republicans 
in Congress more in a zeal to overturn the Affordable Care Act. 
In fact, I counted up the other day. I was surprised at the 
answer. Do you know, Judge Barrett, that Republicans in 
Congress have voted to repeal or gut the ACA more than 70 
times--7-0 times--in the last 10 years? And when they failed 
they turned to the Court. Do you know how many Republicans on 
this Committee have joined in amicus briefs urging courts to 
overturn the ACA in NFIB v. Sebelius and King v. Burwell?
    Judge Barrett. How many Republicans had voted? Was that the 
question?
    Senator Leahy. Do you know how many Republicans on this 
Committee have joined in amicus briefs urging the courts to 
overturn the ACA?
    Judge Barrett. I don't. I am having a little bit of trouble 
hearing, Senator Leahy. Is there a way for the volume to be 
turned up.
    Chairman Graham. Yes, ma'am.
    Senator Leahy. I am sorry for that.
    Chairman Graham. It is on our end, Senator Leahy. That is 
okay. You can repeat the question.
    Senator Leahy. Well, how is it coming through now?
    Chairman Graham. Very good.
    Judge Barrett. Very well. Thank you.
    Senator Leahy. And as you know I have stayed away simply 
because I don't think it is safe for you or anybody else to be 
there.
    But my question is, do you know how many times Republicans 
on the Committee you are sitting before have joined amicus 
briefs urging courts to overturn the Affordable Care Act?
    Judge Barrett. I do not, no.
    Senator Leahy. It is at least 9, by my count. In fact, they 
have already weighed in on the November 10th case. Two weeks 
ago, the Senate voted on whether to side with President Trump 
in Texas v. California, and 11 of the 12 Senators on this 
Committee sided with the Trump administration and asked to kill 
the ACA.
    Now, I understand that you will not share your views on 
Texas v. California. I know you know Judicial Canon 3A(6) and 
you are concerned that commenting may give future litigants 
that appear before you an indication of which way you would 
rule. Is that correct?
    Judge Barrett. Yes, that is correct.
    Senator Leahy. Okay. My concern--my concern is that you 
have already given us every indication. Every time you weighed 
in, it hasn't even been close. You repeatedly disagreed with 
Chief Justice Roberts, for what you said you clearly believe 
the statute is unconstitutional. The President has made very 
clear he expects you to side with him.
    And let me tell you another area where he expects you to 
side with him on. He expects you to side with him in an 
election dispute. He says he needs a ninth Justice because he 
has--he is counting on the Court to look at the ballots, and he 
says the election will be rigged. The recusal statute, 28 
U.S.C. 455, requires recusal where impartiality might 
reasonably be questioned. Now when the President declares he 
needs his nominee to secure his reelection, and then the 
nominee is rammed through the Senate in record time during the 
middle of an election, some are going to question the nominee's 
impartiality.
    To protect confidence in both you and the Court, will you 
commit to recuse yourself from any dispute that arises out of 
the 2020 Presidential election?
    Judge Barrett. Senator Leahy, I want to begin by making two 
very important points, and they have to do with the ACA and 
with any election dispute that may or may not arise.
    I have had no conversation with the President or any of his 
staff on how I might rule in that case. It would be a gross 
violation of judicial independence for me to make any such 
commitment or for me to be asked about that case and how I 
would rule. I also think it would be a complete violation of 
the independence of the judiciary for anyone to put a Justice 
on the Court as a means of obtaining a particular result, and 
that is why, as I was mentioning, I think, to Senator Grassley, 
that the questionnaire that I fill out for this Committee makes 
clear that I have made no pre-commitments to anyone about how I 
would decide a case. That is out of respect for Article III and 
its designation of the judiciary as a co-equal and independent 
branch of Government.
    On the recusal question----
    Senator Leahy. I might say that you gave a similar answer 
when I talked with you and Mr. Cipollone. I had a question, of 
course, because one of the Members of the Judiciary Committee 
said that he would not support you unless he had a commitment 
that you would vote that way.
    Judge Barrett. Vote on the election?
    Senator Leahy. On the other case, Roe v. Wade.
    Judge Barrett. Hmm.
    Senator Leahy. And I understand what you are saying is, 
notwithstanding what a Member of this Committee said, you have 
not made that commitment to anybody. Is that correct?
    Judge Barrett. Senator Leahy, let me be clear. I have made 
no commitment to anyone--not in the Senate, not over at the 
White House--about how I would decide any case.
    Senator Leahy. Well that--and the reason I ask is we also 
have the question of appearance. Now Judge Joan Larsen of the 
Sixth Circuit sat next to you during your 2017 hearing. She was 
confronted with this issue as the judge on the Michigan Supreme 
Court in 2016. Then-President-elect Trump challenged a ballot 
recount. Judge Larsen was on a short list for the Supreme Court 
at the time. She found that being on the short list was a 
conflict and it required her recusal. You were also on the 
short list, and then you were actually chosen. Now he is not 
the President-elect. He is the President. And then the 
President makes a similar claim as he did when Judge Larsen was 
looked at. He is counting on you to deliver him the election. 
Judge Larsen said that was a conflict for her, and would have 
to recuse. You did not find his comments a conflict for you. Is 
that correct?
    Judge Barrett. Senator Leahy, I am not familiar with Judge 
Larsen's decision but she clearly made it once it was presented 
to her in the context of an actual case where she had to weigh 
her obligations under 28 U.S.C. 455.
    If presented to me I would, like Judge Larsen, apply that 
statute. And I recently read a description by Justice Ginsburg 
of the process that Supreme Court Justices go through in 
deciding whether to recuse, and it involves not only reading 
the statute, looking at the precedent, consulting counsel, if 
necessary, but the crucial last step is that while it is always 
the decision of an individual Justice it always happens after 
consultation with the full Court. So I can't offer an opinion 
on recusal without short-circuiting that entire process.
    Senator Leahy. Well, I think what I worry about, and I have 
said over and over again, that if the courts are politicized, 
from the Supreme Court down through other courts, and I arrived 
at cases in all of our Federal courts, I have always assumed 
that judges are totally impartial no matter what President had 
nominated them.
    But this President has not been subtle and he expects his 
nominee to side with him in an election dispute. I am thinking 
of the credibility of our Federal courts, and I hope you would 
at least consider that. The President has said he needs a ninth 
Justice because he is counting on the Court to look at the 
ballots in case he loses, because if he lost that meant that 
the Democrats had rigged the election.
    The recusal statute, as you know as well as anyone, in 28 
U.S.C. 455, requires a Justice to recuse herself in any 
proceeding in which impartiality might reasonably be 
questioned. Now whether you like it or not, and I suspect you 
probably do not, the President has placed both you and the 
Supreme Court in the worst of positions.
    So, let me ask you a different type of question. I assume 
you agree with me that it is critical for Americans to have 
confidence in the Supreme Court. Is that true?
    Judge Barrett. That is true, and I agree with your earlier 
statement that the courts should not be politicized.
    Senator Leahy. Thank you. And, I voted for an awful lot of 
Republican- and Democrat-nominated Justices, just as I did, of 
course, for Chief Justice Roberts. I wanted to keep the Supreme 
Court and other courts out of politics. But when the President 
repeatedly declares he needs his nominee as a way of securing 
his re-election, then that nominee is then rammed through the 
Senate in the middle of that election, well, you can see where 
the nominee's impartiality may be questioned.
    So, my request is, in protecting confidence in both you and 
the Court, are you able to commit to recuse yourself in 
disputes that arise out of the 2020 Presidential election?
    Judge Barrett. Senator Leahy, I commit to you to fully and 
faithfully apply the law of recusal, and part of that law is to 
consider any appearance questions. And I will apply the factors 
that other Justices have before me in determining whether the 
circumstances require my recusal or not. But I can't offer a 
legal conclusion right now about the outcome of the decision I 
would reach.
    Senator Leahy. Which is so a boilerplate response on 
recusal.
    So, let me ask you another question. You laid out the case 
for blocking President Obama's Supreme Court nominee, Judge 
Merrick Garland, for 10 months during an election year. You 
have argued, in part, that Justice Scalia was the staunchest 
conservative on the Court, and Justice Scalia and I were 
personal friends. I voted for him and I agree with you on that. 
You claim that the moderate and eminently qualified Judge 
Garland would dramatically flip the balance of the Court. You 
said it was not a lateral move--that is your quote, it was not 
a lateral move.
    So, now you are nominated to replace Justice Ginsburg, 
perhaps the staunchest champion for civil rights in the Court. 
You claim that the philosophy of Justice Scalia is your own. Of 
course, he was the opposite side of Justice Ginsburg in 
countless civil rights cases. Would you say that replacing 
Justice Ginsburg by yourself is not a lateral move, like you 
urged when you supported the blocking of President Obama's 
nominee, Judge Garland?
    Judge Barrett. Senator Leahy, I want to be very clear. I 
think that is not quite what I said in the interview. It was an 
interview that I gave shortly after Justice Scalia's death, and 
at that time both sides of the aisle were arguing that 
precedent supported their decision. And I said while I had not 
done the research myself, my understanding of the statistics 
was that neither side could claim precedence, that this was a 
decision that was the political branches to make. And I didn't 
say which way they should go. I simply said it was the Senate's 
call. I didn't advocate or publicly support the blockade of 
Judge Garland's nomination, as you are suggesting.
    Senator Leahy. That is not what I am suggesting. You said 
it would not be a lateral move.
    Judge Barrett. What I was suggesting is that it was 
unsurprising that there was resistance, as a political matter, 
to that nomination, because it would change the balance of the 
Court. That is kind of--it is just that----
    Senator Leahy. I was surprised--I was surprised there was 
resistance insofar as there are so many, at that time, 
Republican Members of the Judiciary Committee who had stated 
publicly before the vacancy that they thought Merrick Garland 
would be a good person to have on the Court, and somebody who 
could appeal to both conservatives, liberals and moderates.
    Judge Barrett. I have full respect for Judge Garland.
    Senator Leahy. I beg your pardon?
    Judge Barrett. I am sorry. I missed your first part. Are 
they right to say--could you repeat the question?
    Senator Leahy. No, it was not a question. I was just saying 
that we had many Members of our Committee, a number of 
Republicans who, prior to the vacancy, had been saying Merrick 
Garland would be a good person for President Obama to nominate 
because he could appeal to moderates, conservatives, and 
liberals. And then, of course, their response was, well, we 
can't have a nominee confirmed by one party that is in control 
of the Senate and nominated by the President of another party. 
Of course, I pointed out I was here when Democrats controlled 
the Senate and President Reagan nominated Anthony Kennedy, and 
in an election year Democrats confirmed him.
    But--let me go to another area. A three-judge panel of the 
Seventh Circuit struck down three provisions of an Indiana law 
restricting reproductive rights. It stated Indiana requested en 
banc review of just one of the provisions, the fetal tissue 
disposition provision. Of course, when whether to review the 
case, leaving intact the panel decision to strike down the law, 
you joined Judge Easterbrook in his dissent. But then the 
dissent went out of its way to address a separate provision not 
before the court, the so-called ``reason ban'' that your 
dissent called a ``eugenics statute.''
    Judge Barrett, the issue before your court was a narrow 
one. Why didn't you limit your dissent to the one issue the 
State of Indiana was asking you to review?
    Judge Barrett. So, we dissenters from that denial of 
rehearing en banc, first of all dissented, as you say, on the 
fetal remains disposition portion, which the Supreme Court 
wound up summarily reversing the panel.
    On the eugenics portion of the bill, it is true that the 
State of Indiana did not seek en banc rehearing on that, but we 
had many other States enter the case as amici, urging us to 
take that claim up. And what Judge Easterbrook's dissent did 
was explain why he actually thought it was an open question but 
one best left to the Supreme Court. And we didn't reach any 
conclusion with respect to it.
    Senator Leahy. Well, in whatever position you took would 
not have changed the final decision of the court.
    Now, in 2006, you signed an open letter that was published 
in the South Bend Tribune. On one side the advertisement 
describes the legacy of Roe v. Wade as ``barbaric.'' On the 
other side, which you signed, you stated that you opposed 
abortion on demand, defend the right to life from fertilization 
to natural death. And I have certainly voted for some judges 
that take that position.
    But was not mentioned in the letter the organization that 
led the effort believes that in vitro fertilization, IVF, is 
equivalent to manslaughter and should be prosecuted. Do you 
agree with them that IVF is tantamount to manslaughter?
    Judge Barrett. Senator, the statement that I signed, as you 
said, simply said we--I signed it on the way out of church, it 
was consistent with the views of my church, and it simply said 
we support the right to life from conception to natural death. 
It took no position on IVF.
    Senator Leahy. No, I understand that, and, as I said, I 
voted for judges that take the same position you do. But I'm 
asking, do you agree with the St. Joseph County Right to Life 
that sponsored the ad that IVF is tantamount to manslaughter?
    Judge Barrett. Well, Senator, I signed the statement that 
you and I have just discussed, and you are right that the St. 
Joseph County Right to Life ran an ad on the next page, but I 
didn't--I don't even think the IVF view that you are expressing 
was on that page. But regardless, I have never expressed a view 
on it, and for the reasons that I have already stated, I can't 
take policy positions or express my personal views before the 
Committee because my personal views don't have anything to do 
with how I would decide cases, and I don't want anybody to be 
unclear about that.
    Senator Leahy. Let me talk about some of the positions you 
have taken. Before you became a judge, you were paid by the 
Alliance Defending Freedom, the ADF, for five lectures you gave 
them on originalism at the Blackstone Legal Fellowship. Now, I 
recall some being asked about some of their controversies. Were 
you aware of ADF's decades-long efforts to recriminalize 
homosexuality?
    Judge Barrett. I am not aware of those efforts, no.
    Senator Leahy. Okay. One of the reading materials they had 
for the program that you lectured to several times, they had 
found a brief in Lawrence v. Texas in support of State laws 
punishing private homosexual activity. They celebrated when 
India restored a law punishing sodomy to 10 years in prison. 
Now, I don't--whether you believe that being gay is right or 
wrong is irrelevant to me. But my concern is what you--you 
worked with an organization working to criminalize people for 
loving a person that they are in love with. So that is what 
worried me.
    Judge Barrett. Did you--I wasn't sure if you wanted me to 
answer that. You know, my----
    Senator Leahy. Well, go ahead. Go ahead.
    Judge Barrett. My experience with the Blackstone program at 
which I spoke was a wonderful one. It gathers, you know, best 
and brightest Christian law students from around the country. 
And as you said, I gave a 1-hour lecture on originalism. I 
didn't read all of the material that the students were given to 
read. That had nothing to do with my lecture. I enjoyed 
teaching the students about what my specialty was, which is 
constitutional law, and nothing about any of my interactions 
with anyone involved in the Blackstone program were ever 
indicative of any kind of discrimination on the basis of 
anything.
    Senator Leahy. As you know, same-sex marriage, for example, 
and Senator Feinstein mentioned this at the beginning, is 
certainly legal in my State and has been for some time. Do you 
feel that should be crime?
    Judge Barrett. Same-sex marriage?
    Senator Leahy. Yes.
    Judge Barrett. Obergefell clearly says that there is a 
constitutional right to same-sex marriage.
    Senator Leahy. And you agree with that stare decisis?
    Judge Barrett. Well, Senator, for the reasons that I have 
already said, I am not going to, as Justice Kagan put it, give 
a thumbs-up or a thumbs-down to any particular precedent. It is 
precedent of the Supreme Court that gives same-sex couples the 
right to marry.
    Senator Leahy. Well, you mentioned Justice Kagan. She once 
wrote an opinion that it's not enough that five Justices 
believe a precedent is wrong. Reversing court demands a special 
justification over and above the beliefs that the precedent was 
wrongly decided. Do you agree with that?
    Judge Barrett. I do agree with that. The doctrine of stare 
decisis itself requires that.
    Senator Leahy. Thank you. Having relied on stare decisis in 
many of my arguments before courts of appeals, I thank you for 
your answer. Chief Justice Roberts----
    Chairman Graham. Senator Leahy, I don't mean to interrupt. 
I know you don't have a clock in front of you but we are about 
a little over a minute over, so if you could----
    Senator Leahy. I am sorry, Mr. Chairman. I do not have a 
question.
    Chairman Graham. No, I understand. I totally understand.
    Senator Leahy. I appreciate it and I will look forward to 
the next round of questioning.
    Chairman Graham. Thank you. We will make sure that happens.
    Very briefly, before we go to Senator Cornyn, Senator Leahy 
mentioned my time with the President. I think probably all of 
us on this side were consulted by the President regarding how 
to fill the opening. He gave me a list of--a small list of 
names, all women. You were on it, and I was enthusiastic about 
everybody and very enthusiastic about your nomination by the 
President.
    I play a lot of golf with the President, I guess. I have 
enjoyed it. We talk about a lot on the golf course, some 
policy, killing Soleimani. We talked about that. That was an 
interesting discussion. I promise you I have never talked about 
severability with the President. Senator Cornyn.
    Senator Cornyn. Speak for yourself.
    [Laughter.]
    Senator Cornyn. Good morning, your honor.
    Judge Barrett. Good morning, Senator Cornyn.
    Senator Cornyn. You know, most of us have multiple 
notebooks and notes and books and things like that in front of 
us. Can you hold up what you have been referring to in 
answering our questions?
    Is there anything on it?
    Judge Barrett. The letterhead that says United States 
Senate.
    Senator Cornyn. That is impressive.
    Well, Judge, the best I can understand the objections to 
your nomination are not to your qualifications, your 
experience, or training, but it is that you have or you will 
violate your oath of office.
    I find that terribly insulting. They suggest that you 
cannot be unbiased in deciding a case you have not even 
participated in yet. I found that insulting as well.
    You know, almost as--maybe almost as pernicious as 
attacking somebody for their faith and suggesting that that 
disqualifies them from holding a public office is the attack 
that is being made on judicial independence, something that 
Chief Justice Rehnquist, among others, observed are the crown 
jewels of the American Constitution and the American system.
    But I want to just take a little walk down Memory Lane 
here. You know, there are a lot of--a lot of people who guessed 
how judges would actually rule on cases, and almost always they 
have been spectacularly wrong. I was struck by just a couple.
    Harry Truman said, ``Whenever you put a man''--and that he 
is talking about a man, but a man or woman, ``on the Supreme 
Court, he ceases to be your friend.''
    He said some more colorful things, too. But Theodore 
Roosevelt said about Oliver Wendell Holmes, Jr., he said, ``I 
could carve out of a banana a judge with more backbone than 
that.''
    And as I think about people like Harry Blackmun, nominated 
by Richard Nixon, who wrote Roe v. Wade, as I think about 
Warren Burger, you know, they were called the Minnesota Twins 
and, obviously, over time they became sort of polar opposites 
on the Court.
    I think about the attacks on Neil Gorsuch for his 
unwillingness to make a prior commitment on LGBT issues. He 
wrote the Bostock case, extending Title VII of the Civil Rights 
Act to gay or transgender individuals. Obviously, those 
predictions were wrong.
    And then, since we are talking about the ACA--it is the ACA 
versus ACB, I guess. Chief Justice Roberts was the one who 
wrote the opinion upholding the Affordable Care Act, as you 
know.
    So, I would just say that all of these predictions about 
how judges under our independent judiciary will make decisions 
are just pure speculation.
    But I think they are worse than speculation. I think they 
are propaganda in order to try to make a political point.
    So, Judge, you are not willing to make a deal.
    Judge Barrett. No, Senator Cornyn, I am not willing to make 
a deal, not with the Committee, not with the President, not 
with anyone. I am independent.
    Senator Cornyn. I just would like to hear maybe some of 
your thoughts on--in the Obergefell case, which established, as 
you said, a constitutional right to same-sex marriage, part of 
that decision struck down the Defense of Marriage Act. Correct?
    Judge Barrett. Yes, I believe so.
    Senator Cornyn. That was a bill that Joe Biden voted for.
    Judge Barrett. I do not know about that.
    Senator Cornyn. Well, I do.
    Judge Barrett. Okay.
    Senator Cornyn. Joe Biden voted for it, Pat Leahy, and Bill 
Clinton signed it into law. Can you just--I am not asking you 
to get into details but just sort of differentiate for 
everybody listening what the approach of a legislator is in 
voting for a piece of legislation as opposed to the role of a 
judge in interpreting the constitutionality of a piece of 
legislation? Are they the same or are they different?
    Judge Barrett. They are quite different. A judge is not 
expressing a policy view. You know, I tell my students in 
constitutional law that newspapers do courts a disservice when, 
you know, they say things like, you know, court favors same-sex 
marriage or, you know, just giving the headline without showing 
any of the reasoning that goes into it. Because courts are not 
just expressing a policy preference. They are digging in. They 
are looking at the precedent.
    They are looking at the Constitution, and even when the 
result cuts against policy preferences, judges are obliged to 
follow them. I suspect that this body does not cast votes that 
conflict with their policy preferences.
    Senator Cornyn. Well, that is right, and the difference 
between us and you is you do not run for election.
    Judge Barrett. That is right.
    Senator Cornyn. You do not run on a platform. You do not 
say, if I am confirmed I am going to do this or that. You do 
not do that, do you?
    Judge Barrett. It would be wholly wildly inappropriate for 
me to do so.
    Senator Cornyn. Well, your mentor, Justice Scalia, said 
something back in 2005 that I find intriguing but reassuring. 
He said, ``If you are going to be a good and faithful judge, 
you have to resign yourself to the fact that you are not always 
going to like the conclusions you reach. If you liked them all 
the time, you are probably doing something wrong.''
    Do you agree with that? And if you do, would you explain 
what you mean?
    Judge Barrett. I do agree with that, and that, you know, 
has been my experience on the Seventh Circuit so far. It is 
your job to pass the statutes. It is your job to choose policy. 
And then it is my job to interpret those laws and apply them to 
facts of particular cases, and they do not always lead me to 
results that I would reach if I were, you know, queen of the 
world and I could say, you win, you lose, or this is how I want 
it to be because I just do not have the power by fiat to impose 
my policy preferences or choose the result I prefer. That is 
just not my role. I have got to go with what you guys have 
chosen.
    Senator Cornyn. Well, why in the world would the American 
people surrender their right to govern themselves through their 
elected representatives and through the Constitution and nine 
people who do not even run for election and who serve for 
life--why in the world should the American people do that?
    Judge Barrett. Well, I think part of the rationale for 
courts adhering to the rule of law and for judges taking great 
care to avoid imposing their policy preferences is that it is 
inconsistent with democracy.
    Nobody wants to live in accord with the law of Amy. I 
assure you my children do not even want to do that. So I 
cannot, as a judge, get up on the bench and say, you are going 
to live by my policy preferences because I have life tenure and 
you cannot kick me out if you do not like them.
    Senator Cornyn. Well, thankfully, under the Constitution, 
even if the Supreme Court strikes down a statute, Congress can 
come back and revisit that topic and do so in a way that does 
not violate the Constitution as determined by the Court and, 
ultimately--it does not happen very often in our history but, 
ultimately, we can amend the Constitution itself. Correct?
    Judge Barrett. That is correct.
    Senator Cornyn. So the basis of legitimacy of governmental 
power is consent of the governed. Do you agree with that?
    Judge Barrett. I do agree with that.
    Senator Cornyn. Not what nine people in black robes, ``the 
High Nine on the Potomac,'' I think they are sometimes called--
the decisions they make, those are--that is not the final word 
in our form of Government. Correct?
    Judge Barrett. We are a law--a government of laws, not of 
men.
    Senator Cornyn. Well, Judge Barrett, I am almost through. 
But I cannot pass up the opportunity to ask you a question 
about the Establishment Clause. I did with Justice Kavanaugh 
and Justice Gorsuch as well.
    It is borne out of my frustration. One of the couple of 
times I had a chance as Attorney General of Texas to argue 
before the Supreme Court, I argued in a case called Santa Fe 
Independent School District v. Doe.
    This is about a commonplace practice where before football 
games in Texas students would volunteer to offer a invocation 
or an inspirational poem or saying or something like that.
    The ACLU sued the school district and, obviously, it made 
its way all the way to the Supreme Court. And I am not going to 
ask you your opinion on the outcome of the case.
    But what troubles me the most--what troubled me the most 
about that experience is when the Supreme Court struck down or 
held that practice unconstitutional and in violation of the 
Establishment Clause, Chief Justice Rehnquist said the 
Constitution requires neutrality toward religion but the 
Court's approach speaks of hostility toward religion.
    Could you just talk a little bit about the Establishment 
Clause, generally, with--not in regard to any particular set of 
facts but sort of what the courts over time have tried to do to 
enforce the mandate of the Constitution?
    Judge Barrett. Well, Senator Cornyn, when I interviewed for 
my job with Justice Scalia, he asked what area of the Court's 
precedent that I thought, you know, needed to be better 
organized or that sort of thing, and off the cuff I said, well, 
gosh, the First Amendment.
    And he said, well, what do you mean? And I fell down a 
rabbit hole of trying to explain, without success because it is 
a very complicated area of the law, how one might see one's way 
through the thicket of balancing the Establishment Clause 
against the Free Exercise Clause.
    It is a notoriously different--difficult area of the law, 
and to the extent that, you know, there is tension in the 
Court's cases, and I am giving you no better an answer, I 
assure you, than I did to Justice Scalia that day.
    It has been something that the Court has struggled with, 
you know, for decades to try to come to a sensible way to apply 
both of those Clauses.
    Senator Cornyn. Well, I wish you well.
    Judge Barrett. Thank you, Senator.
    Senator Cornyn. Mr. Chairman, I am going to reserve the 
rest of my time. Thank you.
    Chairman Graham. Thank you, Senator Cornyn.
    For planning purposes, if it is okay with the Committee, we 
will have Senator Durbin, Senator Lee. We will break for about 
a half hour for lunch and come back with Senator Whitehouse.
    Is that okay?
    Senator Durbin.
    Are you okay with that? Do you need a break?
    Judge Barrett. No, that is fine.
    Chairman Graham. Okay.
    Senator Durbin. Thank you, Mr. Chairman, and thank you, 
Judge Barrett, and your family, for being here with us today 
for this marathon questioning.
    [Laughter.]
    Judge Barrett. Thank you, Senator Durbin.
    Senator Durbin. Appreciate it.
    I would like to respond to my colleagues quickly before I 
ask a few questions of you. Who came up with this notion, this 
insulting notion, that you might violate your oath? Where could 
this idea have come from?
    Could it have come from the White House? Could it have come 
from the President's tweets of what he expects a Supreme Court 
nominee to do politically for him?
    That is where it comes from. That is where it originated. 
And you have said, very clearly today without equivocation, you 
were not going to be influenced by President Trump's 
importuning or the importuning of this Committee or anyone 
else, which is what we expect you to say.
    But this notion that this whole idea of your being used for 
political purposes is a Democratic creation, read the tweets 
and you have plenty to work with. Read the tweets.
    The second thing I would like to say is I am not going to 
spend a lot of time defending the Affordable Care Act, although 
I think it is the most important single vote I have cast as a 
Member of Congress, period.
    But I will say that when the Chairman opened up on it and 
said what he did, I was puzzled. Three States get 35 percent of 
the money? How can that possibly be true?
    Well, it turns out because those States decided to extend 
Medicaid coverage to the people who lived in the States and his 
did not, and as a consequence, fewer people in South Carolina 
have the protection of health insurance and those that do are 
paying for their services and those that do not are not, which 
imperils hospitals and others in the process.
    So, I would say there is an explanation as to why some 
States are spending more. And, incidentally, there was a 
Republican governor of your State, Indiana, by the name of Mike 
Pence, who decided to break with other Republican governors and 
extend Medicaid coverage under the Affordable Care Act. I think 
it was the right thing to do for Indiana as it was for 
Illinois. But that is part of the reasoning.
    Let me just say that the Affordable Care Act really is at 
the heart of this, as you can tell, on the Democratic side. We 
really believe the Supreme Court consideration of that case is 
going--could literally change America for millions of people.
    [Poster is displayed.]
    Senator Durbin. I have with me today another group I would 
like you to at least be aware of because they are pretty 
amazing people. But this is the Williams family. They live in 
Naperville, not too far from Chicago.
    Judge Barrett. Yes.
    Senator Durbin. Cathy and Les Williams have four sons, from 
left to right, Matt, Joey, Tommy, and Mikey. Matt, who is 27, 
was diagnosed with type 1 diabetes when he was 13. The other 
three Williams boys were all born with cystic fibrosis. Joey is 
24, Mikey is 21. Sadly, Mikey's twin, Tommy, after this picture 
was taken, passed away in January 2019 from complications. This 
is the last photo that was ever taken of their full family.
    Here is what they wrote me:
    ``We cannot imagine having to go through losing another 
child. People with cystic fibrosis require daily medication, 
regular doctor visits, access to high-quality specialized care.
    ``That means people with pre-existing conditions like 
cystic fibrosis cannot be discriminated against. The ACA's 
protections ensure a ban on annual and lifetime caps and 
enforce the requirement that insurers cover essential health 
benefits such as hospitalizations or mental health services.
    ``People with CF and other pre-existing conditions need 
adequate affordable healthcare to live longer healthier 
lives.''
    That is why we keep bringing this up, real people that we 
run into all the time.
    There is a chart here I want to be sure to bring while we 
are at it.
    [Poster is displayed.]
    Senator Durbin. On the Republican side, there is some 
obvious controversy as to whether we are right or wrong. But 
there are an awful lot of people in each of the States 
represented by our Republican Senators who have their 
healthcare, literally, in some cases, their lives, hanging in 
the balance.
    In South Carolina, 242,000 people would lose their 
insurance coverage if the Affordable Care Act were eliminated. 
Two million living in that State have pre-existing conditions. 
You can imagine the list goes on. Thank you.
    Here is what it comes down to. You have been unequivocal in 
being critical of the decisions both in NFIB v. Sebelius and 
King v. Burwell, and we, naturally, draw the conclusion there 
is going to be a third strike when it comes to California v. 
Texas.
    You said it will not affect pre-existing conditions. If the 
petitioners have their way, there will not be an Affordable 
Care Act to protect pre-existing conditions on the severability 
question.
    So, give us an insight how you can be so unequivocal in 
opposing the majority decisions in NFIB v. Sebelius and in King 
v. Burwell, but have an open mind when it comes to the future 
of the Affordable Care Act.
    Judge Barrett. Sure. Thank you for that question, Senator 
Durbin, because it gives me an opportunity to make my position 
clear.
    When I wrote, and I add this was as a law professor, about 
those decisions, I did critique the statutory interpretation of 
the majority opinions, and, as I mentioned before, my 
description of them was consistent with the way that Chief 
Justice Roberts described the statutory question.
    But I think that your concern is that because I critiqued 
the statutory reasoning that I am hostile to the ACA, and that 
because I am hostile to the ACA that I would decide a case a 
particular way, and I assure you that I am not.
    I am not hostile to the ACA. I am not hostile to any 
statute that you pass and that cases on which I commented--and 
we can talk at another time, I guess, about the context, the 
distinctions between academic writing and judicial decision-
making--but those were on entirely different issues.
    So, to assume that because I critiqued the interpretation 
of the mandate or the phrase ``established by a State'' means 
that on the entirely different legal question of severability I 
would reach a particular result just assumes that I am hostile, 
and that is not the case.
    I apply the law. I follow the law. You make the policy.
    Senator Durbin. So, let's talk about that for a moment from 
a different issue perspective. Bear with me for a couple 
questions. Have you seen the George Floyd video?
    Judge Barrett. I have.
    Senator Durbin. What impact did it have on you?
    Judge Barrett. Senator, as you might imagine, given that I 
have two Black children, that was very, very personal for my 
family. Jesse was with the boys on a camping trip out in South 
Dakota.
    So, I was there, and my 17-year-old daughter, Vivian, who 
is adopted from Haiti, all of this was erupting. It was very 
difficult for her. We wept together in my room. And then it was 
also difficult for my daughter, Julia, who is 10. I had to try 
to explain some of this to them.
    I mean, my children to this point in their lives have had 
the benefit of growing up in a cocoon where they have not yet 
experienced hatred or violence, and for Vivian, you know, to 
understand that there would be a risk to her brother or the son 
she might have one day of that kind of brutality has been an 
ongoing conversation. It is a difficult one for us, like it is 
for Americans all over the country.
    Senator Durbin. And so, I would like to ask you, as an 
originalist who, obviously, has a passion for history--I cannot 
imagine that you could separate the two--to reflect on the 
history of this country, where are we today when it comes to 
the issue of race?
    Some argue it is fine. Everything is fine and you do not 
have to even teach children about the history of slavery or 
discrimination. Others say there is implicit bias in so many 
aspects of American life that we have to be very candid about 
and address.
    Others go further and say, no, it is systemic racism that 
is built into America and we have to be much more pointed in 
our addressing it.
    How do you feel?
    Judge Barrett. So, I think it is an entirely 
uncontroversial and obvious statement, given, as we just talked 
about, the George Floyd video, that racism persists in our 
country.
    As to putting my finger on the nature of the problem, you 
know, whether, as you say, it is just outright or systemic 
racism, or how to tackle the issue of making it better, those 
things, you know, are policy questions. They are hotly 
contested policy questions that have been in the news and 
discussed all summer.
    So, while, you know, as I did share my personal experience, 
I am very, you know, happy to discuss the reaction our family 
had to the George Floyd video, giving broader statements or 
making, you know, broader diagnoses about the problem of racism 
is kind of beyond what I am capable of doing as a judge.
    Senator Durbin. Well, I would doubt that. I just do not 
believe you can be as passionate about originalism and the 
history behind language that we have had for decades, if not 
centuries, without having some thought about where we stand 
today.
    But I am not going to press you on that. I am going to take 
you to a case which I have read and reread, Kanter v. Barr. You 
know the case well because it has already been referred to and 
it clearly is a case where you had your day in court.
    You wrote the sole dissent. As a 64-page case, 37 pages 
were your dissent. So you gave to the court, I assume, a pretty 
full accounting of your thoughts on the subject.
    And here is the way I understand the case. A fellow named 
Rickey Kanter from Mequon, Wisconsin, invented some pads to put 
in a shoe to be sold to particularly older Americans under 
Medicare to relieve foot pain, and he designed them and 
submitted them to Medicare and did not get the approval that he 
was looking for. But, instead, sold them and represented to 
many customers that they had been approved by Medicare.
    Judge Barrett. Mm-hmm.
    Senator Durbin. And so he was charged with fraud. Now, this 
was not a matter of a casual misapplication of the law. When it 
was all said and done, Rickey Kanter of Mequon, Wisconsin, 
ended up spending over a year, a year and a day, in Federal 
prison, paying somewhere near $300,000 in penalties and fines 
and $27 million in a civil settlement on this issue.
    So, this was not a casual wrongdoing. This man was a 
swindler, and he was taking the Federal Government for a ride, 
as well as other customers, and misleading senior citizens 
about his product, and paid a heavy price for it.
    Then he decided, having left prison, that it is just 
fundamentally unfair that the law says that if you had been 
convicted of a felony you cannot own a firearm.
    Now, I do not know what his appetite is when it comes to 
firearms, whether it is a revolver or AK-47 with a banana 
clip--I have no idea.
    But he went to court and said, this is unfair. It was just 
mail fraud, and you are taking away my Second Amendment rights.
    So, two out of three of your colleagues then basically 
said, sorry, Rickey, you have forfeited your right to own a 
firearm because of your conviction of a felony.
    You took a different approach, exactly the opposite 
approach, and went deep into history--I think the earliest 
citation I see here was 1662--to figure out just what was going 
on here and whether or not he had to have committed a violent 
felony to have forfeited this right to own a firearm.
    Have I stated the facts close to what you remember?
    Judge Barrett. I do not remember the amount of the loss, 
some of those details. But yes, Rickey Kanter was convicted of 
selling fraudulent shoe inserts, and it was a felony.
    Senator Durbin. Mm-hmm. Twenty-seven million dollar 
settlement along the way. So I would like to take you into your 
thinking on this.
    When the Heller decision was handed down, Justice Scalia 
expressly said, I am not taking away the authority of 
government to impose limitations based on felonies, not violent 
felonies, felonies, and mental illness. He said as much in the 
Heller decision.
    And yet, this man who was your inspiration, as you have 
told us all, you decided he was wrong and that it had to be a 
violent felony. Can you explain why?
    Judge Barrett. I can. So we have talked about precedent, 
and in my court, the Seventh Circuit, there is precedent saying 
that that phrase does not control, as, you know, my colleague, 
Judge Frank Easterbrook, has said a number of times that 
judicial opinions are not statutes and should not be read as if 
they were.
    So Heller, obviously, was not about the scope of the right, 
you know, its application to felons or those who are mentally 
ill, et cetera. And so that passage was dicta. It did not fully 
dive down into it.
    But what I did was apply Heller's methodology. Both Justice 
Scalia's majority opinion and Justice Stevens' dissent used an 
originalist methodology to answer that question, and I 
concluded that based on that history, one could not take the 
right away simply because one was a felon, that there had to be 
a showing of dangerousness.
    And I did not rule out the possibility that the Government 
might be able to make that showing about Rickey Kanter. But I 
think we could all agree that we ought to be careful of saying 
that because someone is a felon, they lose any of their 
individual rights.
    Senator Durbin. I want to get to that point, but I would 
like to stick with this for just a moment more. I am honored to 
represent the City of Chicago and the State of Illinois. It is 
a great city.
    But it has great problems, too, and one of them is gun 
violence. On the average, we know in America a hundred 
Americans are killed every day by gunfire, 40,000 per year. In 
the city of Chicago, more than 3,200 people have been shot just 
this year. Three thousand, two hundred.
    According to the City's ``Gun Trace: Report'' in 2017, 
``the majority of illegally used or possessed firearms 
recovered in Chicago are traced back to States with less 
regulation over firearms, such as Indiana and Mississippi.''
    The 2017 report found that Indiana alone was the source of 
21 percent of all Chicago's recovered crime guns. We know how 
it works where you live. You know how it works.
    There is a traffic between Chicago, northern Indiana, and 
Michigan going on constantly. Gun shows are held in Gary, 
Indiana, and other places, and when they are selling these 
firearms without background checks, unfortunately, these 
gangbangers and thugs fill up the trunks of their cars with 
firearms and head into the City of Chicago and kill everyone 
from infants to older people.
    It just--it's a horrific situation. Law enforcement is 
fighting it, trying to get Indiana to at least do background 
checks at these gun shows with limited success, and we are 
trying to apply the standards, that you disqualify yourself 
from by buying a firearm, to felonies and mental illness, and 
you want to take away part of that protection with your 
decision in this case.
    Because if you eliminate felonies and just confine it to 
violent felonies, you are opening up more opportunities for 
people to buy firearms, are you not?
    Judge Barrett. Well, Senator, you referred to gang members 
and thugs buying guns in Indiana and taking them across the 
border, and certainly, that if they had felony convictions for 
doing the kinds of things that members of gangs and thugs do, 
nothing in Kanter says that the Government cannot deprive them 
of firearms, and nothing says in my opinion that the Government 
cannot deprive Rickey Kanter of having firearms.
    They simply had to make a showing of dangerousness before 
they did so. And nothing in the opinion opines at all on the 
legality of background checks and gun licensing. Those are all 
separate issues.
    Senator Durbin. But the majority zeroes in and says what 
you have just said is totally impractical, that we are going to 
go case by case and decide, well, what kind of felonies and 
what kind of person.
    And then they go on to produce evidence--I could read the 
numbers here, but you know them well because you wrote the 
dissent--where the likelihood of committing a violent felony 
after being convicted of a felony is pretty dramatic, and they 
are saying to us, do not let us--do not force us to make it 
case by case.
    We want to make it by category. It is the only practical 
way to deal with the thousands, if not millions, of people who 
are buying firearms.
    You are aware of the fact that even those who are so-called 
not violent felons, quote, ``only felons'' like Rickey Kanter 
have a propensity to commit violent felonies in the future, are 
you not?
    Judge Barrett. There was no evidence of that in the case, 
and we on courts, for example, the Armed Career Criminal Act, 
that is a Federal statute, have to make judgments categorically 
all the time about what count as crimes of violence.
    So, I do not think that is beyond the ken of courts in any 
area to identify which felonies are violent and, you know, 
which felonies are not. On the----
    Senator Durbin. So let us--excuse me.
    Judge Barrett. Yes.
    Senator Durbin. But I want to address that issue. Let us go 
to page 21 of the opinion and what the Court said, the majority 
in the Court. ``Most felons''--they quoted Yancey--``Most 
felons are nonviolent, but someone with a felony conviction on 
his record is more likely than a nonfelon to engage in illegal 
and violent gun use. For example, one study,'' this goes on to 
say, ``210,886 nonviolent offenders found that 1 out of 5 were 
rearrested for a violent crime within 3 years.'' So the 
evidence is there. It is there for the court to consider, and 
you ignored it.
    Judge Barrett. Senator, I did not ignore it. As I recall, 
that evidence and the studies were unclear. It--and let us see, 
I cannot remember as I am sitting here the details of all the 
statistics.
    But I did consider it, and I recall saying something in the 
opinion about the reliability of those studies because they did 
not say whether someone had been convicted of a nonviolent 
crime but had later been convicted of a violent crime as well.
    I mean, felonies cover a broad range of things, including 
selling pigs without a license in some States, redeeming too 
many bottle caps in Michigan. I mean, so, felonies now cover a 
broad swath of conduct, not all of which seems indicative of 
whether someone is likely to abuse a firearm.
    Senator Durbin. So, let us--let me take you--I am not going 
to go so far back in history, but I am going to take you back 
in history for a moment and note that when that Second 
Amendment was written and you did the analysis of it, we were 
talking about the likelihood that a person could purchase a 
muzzle-loading musket.
    We are now talking about virtual military weapons that can 
kill hundreds of innocent people. It is a much different 
circumstance. Maybe an originalist pins all their thinking to 
that musket.
    But I have got to bring it to the 21st century, and the 
21st century has people being killed in the streets of Chicago 
because of the proliferation of deadly firearms.
    But let me bring it closer to home and tie up the George 
Floyd question with where I am headed. There is also a question 
as whether the commission of a felony disqualifies you from 
voting in America, and the history on that is pretty clear.
    In an article, the American Journal of Sociology found 
that, ``Many felon voting bans were passed in the late 1860s 
and 1870s, when implementation of the Fifteenth Amendment and 
its extension of voting rights to African-Americans were 
ardently contested.''
    It still goes on today with voter suppression. But we know 
that in Reconstruction, in the Jim Crow era, in Black Code era, 
that was used.
    A felony conviction was used to disqualify African 
Americans from voting in the South and many other places. The 
Sentencing Project today has found that more than 6 million 
Americans cannot vote because of a felony conviction, and 1 out 
of every 13 Black Americans have lost their voting rights.
    The reason I raise that is that in your dissent you said 
disqualifying a person from voting because of a simple--because 
of a felony is okay, but when it comes to the possession of 
firearms, wait a minute, we are talking about the individual 
right of the Second Amendment. What we are talking about in 
voting is a civic right, a community right, however you define 
it. I do not get it.
    So, you are saying that a felony should not disqualify 
Rickey from buying an AK-47, but using a felony conviction in 
someone's past to deny them the right to vote is all right?
    Judge Barrett. Senator, what I said was that the 
Constitution contemplates that States have the freedom to 
deprive felons of their right to vote. It is expressed in the 
constitutional text.
    But I expressed no view on whether that was a good idea, 
whether States should do that, and I did not explore in that 
opinion because it was completely irrelevant to it what limits, 
if any, there might be on a State's ability to curtail felon 
voting rights.
    Senator Durbin. But did you not distinguish the Second 
Amendment right from the right to vote, calling one an 
individual right under the Constitution and the other a civic 
right?
    Judge Barrett. That is consistent with the language in the 
historical context the way the briefs described it, and it was 
part of the dispute in Heller of whether the Second Amendment 
was an individual right or a civic one that was possessed 
collectively for the sake of the common good, and everybody was 
treating voting as one of the civic rights.
    Senator Durbin. Well, I will just tell you that the 
conclusion of this is hard to swallow. The notion that Mr. 
Kanter, after all that he did, should not be even slowed down 
when he is on his way to buy a firearm--my goodness, it is just 
a felony--it is not a violent felony that he committed--and 
then to turn around, on the other hand, and say, well, but when 
it comes to taking away a person's right to vote that is a 
civic duty, it is something that we could countenance, that 
is--really goes back to the original George Floyd question.
    That was thinking in the 19th century that resulted in 
voter suppression and taking away the right to vote from 
millions of African Americans across this country, and it still 
continues to this day.
    I just do not see it. I think the right to vote should be 
given at least as much respect as any Second Amendment right. 
Do you?
    Judge Barrett. Senator, the Supreme Court has repeatedly 
said that voting is a fundamental right, and I fear that you 
might be taking my statement in Kanter out of context.
    What I said in that opinion was distinguishing between--it 
was a descriptive statement of the state of the Court's caselaw 
comparing it to felon--stripping felons of Second Amendment 
rights.
    I expressed no view about whether--what the constitutional 
limits of that might be or whether the law should change with 
respect to felon voting rights--and, obviously, that is a 
contested issue in some States that are considering it right 
now. And I have no view on that, and it was not the subject of 
Kanter.
    Senator Durbin. It may not have been--it was not the 
subject of the case, that is for sure. But in your writings you 
raise this. It was part of your dissent discussing the right to 
vote and felony conviction--eliminating it.
    I am afraid it is inescapable. You have got to be prepared 
to answer this kind of question. I read it and thought, I 
cannot imagine that she is saying this. But I am afraid I was 
left with the suggestion you might, which brings me to the 
conclusion here.
    We hear over and over from the other side of the aisle, we 
do not want any activist judges. We want judges who are going 
to go back to the original document, literally take it word for 
word, put it in a historical context, and do not get in the way 
of making laws. We make the laws. You are a judge. You stay 
away from them.
    And, yet, when we look at this case, the notion of what 
disqualifies you from buying a firearm was being rewritten by 
the dissenting judge and saying when we say felony we just mean 
violent felony.
    Well, the word violent is not in there. But you found it, 
or at least found reference to it. It is not the only time this 
has happened.
    In Citizens United and its progeny, Republican-appointed 
Justices struck down bipartisan campaign finance reform to 
unleash a flood of dark money into our political system. Part 
of that flood is paying for the ad campaign promoting your 
nomination for the Supreme Court.
    I know you have said you have gone radio silent in 
following the media. I do not blame you. I'd do the same thing, 
politically.
    But I can just tell you, I have seen them. They are 
beautiful expensive ads boosting your nomination for the 
Supreme Court from organizations we have never heard of, 
spending millions of dollars to make sure you get on the 
Supreme Court.
    Citizens United opened the door for that. And in Shelby 
County, conservative Justices gutted the Voting Rights Act to 
unleash a wave of voter suppression across the country, going 
back to the George Floyd moment.
    Unfortunately, a lot of it is for racial purposes. And this 
is an example, two or three examples, that I have given here of 
activist judges rewriting the law, abolishing the law. People 
have to get real. As I said to you on our phone conversation, I 
do not think you put the facts here and the law here and nine 
Justices come to the same conclusion. Cases are 5-4, 6-3, 7-2, 
unanimous.
    People see things differently based on their backgrounds, 
their values, their experience, and I think it is simplistic to 
think this is a robotic performance once we put a judge on the 
bench; they just go back, read the Constitution, and rule.
    It is not that simple, and I think you have acknowledged 
that by saying even originalists disagree with one another. Is 
that true?
    Judge Barrett. Yes. Law is hard and it is complicated, and 
people who approach it from different jurisprudential 
perspectives will sometimes reach different results.
    I mean, I think that is hard to deny because, as you say, 
every vote from the Supreme Court is not unanimous and 
sometimes it is. But cases do not get to the Supreme Court 
unless the circuits disagree among themselves. So it is hard.
    But to the extent, Senator Durbin, that you are suggesting 
that I have some sort of agenda on felon voting rights, or 
guns, or campaign finance, or anything else, I can assure you 
and the whole Committee that I do not.
    Senator Durbin. I did not say that and I would not say 
that. But I will say that you come--if you are successful in 
this pursuit, you come to the Supreme Court with life 
experiences.
    You come to the Supreme Court having read a lot, I am sure, 
and drawn some conclusions in your own mind about certain 
things and certain issues.
    Everyone on the Court has that same background. They bring 
something to it that is just not generic, it is individual, and 
that is the point I am making. There is an individualism to 
this.
    The class of originalists on the Supreme Court are not all 
going to vote the same on every case, and I think merely saying 
originalism does not absolve you or us from observing the 
obvious. There are going to be differences.
    I thank--would you like to say something? I do not want to 
cut you off.
    Judge Barrett. No. That is okay.
    Senator Durbin. Okay. Thank you very much.
    Judge Barrett. Thank you, Senator.
    Chairman Graham. Thank you, Senator Durbin.
    We will go to Senator Lee, and after that we will take a 
30-minute lunch break and start back with Senator Whitehouse. 
Senator Lee.
    Senator Lee. Thank you, Mr. Chairman. I have two letters 
for the record that I would like to have admitted. They are 
offered by former law clerks of Judge Barrett's.
    Chairman Graham. Without objection.
    [The information appears as submissions for the record.]
    Senator Lee. I would encourage all of my colleagues to read 
them. They are outstanding, and provide great insight into 
Judge Barrett's immense qualifications.
    Judge Barrett, moments ago we went through a rather 
interesting set of exchanges. One of my colleagues--I hope I 
misunderstood him--seems to have suggested that it is a 
political talking point for you to decline to indicate how you 
would rule on a particular case or a particular type of case.
    To the extent that that is what any colleague has 
suggested, I would remind that colleague that it is just wildly 
incorrect. It is wildly incorrect with Canons of Judicial 
Ethics, with Federal law, with the statement laid out by 
Justice Ruth Bader Ginsburg in her own confirmation proceedings 
before this very body in this very room nearly 30 years ago.
    It is imperative that you uphold those standards and I 
applaud you for doing so, and I think on no planet is it 
appropriate for anybody to suggest that is a political talking 
point for you to say, I am not going to indicate how I am going 
to rule in a particular case.
    Justice Ginsburg did, in fact, say it well, and some of 
this has been quoted today. I am going to quote it again just 
for good measure.
    She said, ``Judges in our system are bound to decide 
concrete cases, not abstract issues. A judge sworn to decide 
impartially can offer no forecast, no hints, for that would 
show not only disregard for the specifics of a particular case. 
It would display disdain for the entire judicial process.
    ``Similarly, because you are considering my capacity for 
independent judging, my personal views on how I would vote on a 
publicly debated issue were I in your shoes, were I a 
legislator, are not what you will be closely examining.''
    That is what she said. She said it well. It was true in 
1993, and it remains true today.
    I want to turn next to the line of questioning that you 
just finished--that you just completed. I, too, have read the 
Kanter case, and I am thrilled that we have got a jurist who is 
willing, when looking at somebody whose constitutional rights 
are about to be taken away, thrilled to have a jurist who is 
willing to consider a pre-deprivation review for that 
individual.
    Is it unusual, Judge Barrett, to consider someone's 
constitutional rights on an individualized basis before having 
a specifically enumerated constitutionally protected right 
removed?
    Judge Barrett. That would be very, very unusual.
    Senator Lee. It would be very, very unusual, and it would 
be unwise, would it not?
    Judge Barrett. Well, I think what I could say to that, just 
to be careful about how much law I am analyzing, is that the 
Fourteenth Amendment Due Process Clause certainly guarantees to 
each individual due process before liberty is taken away.
    Senator Lee. I also appreciated the thorough analysis that 
you undertook, making clear that our rights in this area do not 
just date back a few decades. They do not just date back to the 
1960s. They do not date just back to the 1780s or the 1760s.
    They date back at least to the 1660s. I mean, they go way, 
way back. There was a lot of history that went into what became 
the Second Amendment.
    There were conflicts. This involved not just partisan 
conflicts but conflicts between the king and subjects, and not 
just between the king and subjects in the abstract, but very 
often it was between Protestants and Catholics.
    Sometimes it was Catholics who were not trusted with guns. 
Sometimes it was Protestants who were not trusted with guns. 
But there was a lot of violence that went into that and that 
led to our adoption of that Amendment.
    I appreciated your historical analysis of this, your 
willingness to be thorough, to make sure that when someone's 
constitutionally protected rights are taken into account, you 
are going to do your homework.
    You are going to do your homework even if it is hard. You 
are going to do it even if you have got colleagues who are not 
willing to go there. That is what judicial leadership is. 
Judicial leadership involves willingness to stand alone.
    Judge Barrett, one of the things that came out to me as I 
read your opinion in the Kanter case is that your commitment to 
textualism and originalism are, in fact, real. They are not 
feigned. This is the kind of thing you cannot fake. This is not 
something you make up at the last minute.
    Yes, I agree with Senator Durbin. Being a textualist and an 
originalist does not guarantee a particular result, a 
particular outcome, in any particular case. But it does 
indicate a style, a preference. Tell me why textualism and 
originalism are important to you.
    Judge Barrett. Because I think that both statutes and the 
Constitution are law. They derive their democratic legitimacy 
from the fact that they have been enacted, in the case of 
statutes, by the people's representatives, or, in the case of 
the Constitution, through the Constitution-making process. And 
I, as a judge, have an obligation to respect and enforce only 
that law that the people themselves have embraced.
    As I was saying earlier, it is not the law of Amy, it is 
the law of the American people. And I think originalism and 
textualism, to me, boil down to that, to a commitment to the 
rule of law to not disturbing or changing or updating or, you 
know, adjusting in line with my own policy preferences what 
that law requires.
    Senator Lee. And is it--is it the subjective motivation, 
the subjective intent of an individual lawmaker or drafter of a 
constitutional provision that we are looking at? Or is it 
original public meaning? And if so, what is the difference 
between those two?
    Judge Barrett. It's original public meaning, not the 
subjective intent of any particular drafter. So, one thing I 
have told my students in constitutional law is that the 
question is not what would James Madison do. We do not--we are 
not controlled by how James Madison perceived any particular 
problem.
    That is because the law is what the people understand it to 
be, not what goes on in any individual legislator's mind.
    I respect you greatly, Senator Lee, but what you think in 
your mind rather than what passes through both Houses and is 
signed by the President, that is what is the law, not any 
private intentions you have.
    Senator Lee. So, regardless of what--let us say I pass bill 
XYZ, and I am the sponsor of it, and I take it down to the 
floor, and I say, here is bill XYZ, and here is what I think 
about it. Here is what I intend to do with it, and I put that 
statement into the legislative record.
    What, if any, impact should that statement have on the 
meaning of law XYZ once it becomes law?
    Judge Barrett. Nothing. You got to get it into the law 
itself if you want it to be law. Legislative history is not 
what goes through the process of bicameralism and presentment.
    Senator Lee. Regardless of how passionately and 
persuasively I make that point in whatever glorious speech I 
give in support of bill XYZ, it does not make a darn bit of 
difference, does it?
    Judge Barrett. It does not. I am sure the speech would be 
glorious, but I assume the point you make probably would be 
made by the advocates in the case, too. And so in that respect, 
you are functioning as an advocate when you make the glorious 
statement but not speaking with the voice of the lawmaker 
because no individual does. It is the full body that speaks.
    Senator Lee. I want to speak next about the Affordable Care 
Act. We have seen posters going up over and over and over 
again. We have seen them yesterday. We have seen them today.
    We have seen a lot of compelling stories of--about people 
whose lives have been marked by difficult things that they have 
endured. They have involved touching and heartwarming stories.
    I continue to doubt the relevance of things like that here, 
especially insofar as they are being used to suggest that your 
confirmation to the Supreme Court of the United States has 
anything to do with their healthcare.
    Tell me why you think that any individual American's 
healthcare status is or is not tied to your confirmation to the 
Supreme Court of the United States.
    Judge Barrett. It is not tied to my nomination to the 
Supreme Court of the United States. I have said repeatedly 
under oath that I had no conversations with anyone in the White 
House about that case, and I am not sure to the extent there is 
a suggestion that I have an agenda that I want to strike down 
people's protection for pre-existing conditions.
    That is just not true. I have never taken that position 
and, as I have also said repeatedly, any policy preferences 
that I have do not matter anyway. They are irrelevant. So 
making that law, coming out with the contours of the ACA, that 
is your job.
    Senator Lee. It is our job. It is the job of policymaking 
branches of Government. It is the job of whatever combination 
of State and Federal lawmakers and other policymakers have, and 
a judge is not a policymaker.
    When Congress passes a law, Congress is in charge of making 
sure that that law works. Insofar as that does not work or that 
law ends up being stricken down, it is our job to replace it 
with something that does work, whether constitutionally or 
otherwise, in all respects. That is our job, not yours.
    You made some comments a few years ago, comments with which 
I wholeheartedly agree, raising a criticism with Chief Justice 
Roberts and his majority decision in NFIB v. Sebelius, a 
decision--and do not worry, I am not going to ask you to weigh 
in on this--you made those comments at the time, and they are 
not relevant to me now, but I set this up for reasons I will 
explain in a moment.
    He rewrote the Affordable Care Act, not just once but 
twice, in substantive ways in order to save that law from an 
otherwise inevitable finding of unconstitutionality. Because 
that law as written by this Congress was, in fact, 
unconstitutional in two material respects at issue in NFIB v. 
Sebelius. Blatantly unconstitutional.
    He, effectively, acknowledged that the law as written could 
not pass constitutional muster and so he rewrote it, not just 
once but twice, in order to save it.
    That is water under the bridge. That happened. It is 
inexcusable that he did that. He misused the judicial 
authority. That case has absolutely nothing to do with 
California v. Texas. It has absolutely nothing to do with the 
question of severability in that case.
    Would it be fair to say that my very strong opinions that I 
have just expressed do not indicate how I would feel, how I 
would lean were I a jurist in California v. Texas?
    Judge Barrett. I think you are correct, Senator Lee, that 
the question, the legal issue, is entirely different in 
California v. Texas. Severability is its own independent 
doctrine and has nothing to do with the statutory 
interpretation questions presented in Sebelius.
    Senator Lee. In many circumstances in this country we see 
emotionally charged issues that boil--that boil for a long time 
and that cannot always be resolved.
    Not everybody is going to agree on everything. Not 
everybody is going to agree on certain hot-button social issues 
that result, in some cases, from just basic differences in how 
people view life and how people view their place in the 
universe.
    One of those areas where it manifests itself is in the area 
of abortion. People view life and when it begins differently.
    Some of that is informed by religious beliefs. Some of it 
is informed just by people's commonsense approach to what they 
think the law ought to say and what it ought not to say.
    Disputes regarding when life begins and disputes regarding 
abortion did not begin with Roe v. Wade. What did change with 
Roe v. Wade, however, was the federalization and the grasping 
of the issue, and the taking it beyond the realm of political 
debate within the Federal judiciary, such that elected 
lawmakers were no longer in a position to be the primary 
drivers of policy.
    As a result, over the last few decades, we have had all 
kinds of questions that have been put into uncertainty. We have 
got uncertainty by people at the State level who want to make 
their own decisions about certain things around abortion. They 
know they cannot prohibit it entirely. They know that there is 
this undue burden standard that has to be addressed. Nobody is 
completely sure in advance what that means and so they work 
around it.
    There are discussions that arise regarding health and 
safety qualifications for abortion clinics, how close an 
abortion clinic needs to be to an accredited hospital, how it 
needs to be staffed, or what the sanitation protocols are.
    Then you have got, more recently, some States passing laws 
saying, look, there is abundant medical science showing that an 
unborn human can feel and respond to pain as early as, I do not 
know, 10 or 12 gestational weeks, but certainly by 20 weeks.
    And so by 20 weeks we are going to adopt a different set of 
legal procedures for an abortion as a result of that because if 
this is a human that everybody agrees can feel and respond to 
pain, we ought to handle that differently. All of those things 
and the legitimacy of those laws are thrown into the Federal 
courts yet again. All because those were made Federal issues.
    Now, I want to be very clear. You would have the impression 
from watching debates in circumstances like this one and in 
protests outside the Supreme Court of the United States--you 
would have the impression that if Roe v. Wade did not exist 
that all of a sudden abortion would immediately become illegal 
in every State in America.
    That assumes a lot of facts not in evidence. In fact, that 
assumes a lot of things contrary to evidence. It is not--it is 
simply not the case that the fate of healthcare in America 
turns on whether or not someone is confirmed to the Supreme 
Court of the United States, nor is it a fact to suggest that 
the availability of an abortion or lack thereof is contingent 
upon anyone's confirmation to the Supreme Court of the United 
States.
    The fact that we have this debate and the fact that it has 
become as protracted, as personal, as ugly as it has, could, I 
suspect, be traced to the fact that we tried to take a 
debatable matter beyond debate and we have tried to take it 
outside the political branches of Government where people can 
elect their individual representatives and have laws respecting 
and reflecting the views of their respective communities.
    We are a country of, what, 330 million Americans. It is 
really, really difficult to have those 330 million Americans 
reflected in nine members of a Supreme Court.
    It is still really hard to have them reflected in 100 
Senators and 435 Representatives. That is doable, especially 
when those people are elected.
    They stand for election every couple of years in the case 
of the House, every 6 years in the case of the Senate. It does 
not happen that way in the Supreme Court of the United States.
    So, to my colleagues on the other side of the aisle who are 
fear mongering on this, causing people to worry and lose sleep 
over this, fundraising over this, fundraising over threats that 
people are going to lose their healthcare, fundraising over 
threats that people are going to be dying in the streets 
because of the lack of availability of this or that medical 
procedure, I would ask, have we created a monster?
    Have we ourselves, through our own inaction, through our 
own voluntary cessation of authority to a non-legislative, non-
political branch, have we created the very set of untenable 
social circumstances that are causing people to protest outside 
of a nonpolitical entity? I think we have to ask ourselves that 
question from time to time.
    Life is, in fact, valuable. It is not a religious statement 
to make that observation. In fact, it is the foundation of 
basically all of our laws, not just in this country, not just 
in countries with Christian origins but in basically every 
country that has ever existed anywhere in the world.
    The purpose of government is to protect life. That is what 
it is about. If we cannot agree on the fact that it is 
reasonable that people ought to be able to have some say, at 
least at some limit, at least at some point beyond the moment 
when an unborn human can feel and respond to pain, then 
something is wrong with us.
    And if we are going to leave those things perpetually in 
the hands of the unelected, it might be really convenient for 
political fundraising within Congress, but it is not good for 
the United States of America.
    It is not good for constitutionally limited government. It 
is not good for our individual liberties.
    Judge Barrett, Alexander Hamilton was prescient in a number 
of areas. He had some crazy ideas. He did some crazy things. He 
was also freaking brilliant.
    I think he foresaw certain aspects of our lives when he 
described the differences between the branches of Government in 
Federalist 78.
    And in Federalist 78, he said that the legislative branch, 
Congress, being a political branch, a branch whose job it is to 
make policy, to make law, possessed with will and that what is 
possessed in the judicial branch is not will but judgment.
    He then went on to explain that it is real important to 
maintain that clear distinction between will and judgment lest 
you have a judicial branch consisting of people who are not 
elected by the people, not accountable to the people at the 
regular intervals, and who serve, basically, for the rest of 
their lives so long as they are on good behavior.
    You cannot have them exercising will because it is not 
their job. What do you think he meant? What is the difference 
between will and judgment?
    Judge Barrett. I think will is the imposition of policy 
preferences as happens in the making of law. Judgment is 
evaluating that law for its consistency with the Constitution, 
for example, or to give another example, to interpret what that 
law means.
    But it most certainly is not the imposition of policy 
preferences. A judge who approaches a case as an opportunity 
for an exercise of will has acted--has betrayed her judicial 
duty.
    Senator Lee. How does she know when she has reached that 
point?
    Judge Barrett. So I think it requires disciplined judicial 
decision-making. So you approach the text. You treat it as a 
text. You treat it as law. You know, I have described 
originalism and textualism so I will not belabor that point.
    But I will say that one practice that I have, one check 
that I put on myself to make sure that I am not biased, is that 
when I write an opinion, I try to read it from the perspective 
of the losing party so that any sympathy that I might feel for 
the particular results that I reach, I try to make the sympathy 
run the other way to see if it will still hold, and also to 
see, like, you know, I would be disappointed in this outcome if 
it was my child whose sentence or criminal conviction or civil 
loss, whatever it is, is on the line, but would I still think 
it was a well-reasoned opinion.
    And that is the test that I use for myself. I think 
discipline is required. But I take it very, very seriously.
    Senator Lee. As we have had this conversation today, one of 
the--one of the arguments that has been made by some of my 
colleagues has referred to activism and has accused, if I 
understood the argument correctly, some textualist originalist 
jurists as having engaged in activism.
    Well, I want to be clear. I am one who does not believe 
that there is anything worse about an activist judge than a 
passivist judge, meaning I think it is every bit as bad to be a 
passivist.
    That is, for example, to let stand an invalid, 
unconstitutional law as if it were valid and constitutional. 
Every bit as bad to do that as it is to invalidate as 
unconstitutional something that is, in fact, not 
unconstitutional.
    Do you agree with me that both of those are equally 
instances of bad judging?
    Judge Barrett. They are both instances, as you have posed 
them, of not following the law, not following the Constitution 
or not correctly interpreting a statute.
    Senator Lee. By the same token, a judge who fails to grant 
a meritorious dispositive motion and a judge who grants a 
nonmeritorious dispositive motion, they have both probably done 
an equally bad thing. Is that right?
    Judge Barrett. Yes.
    Senator Lee. Does the Constitution say anything about the 
size of the Supreme Court?
    Judge Barrett. The Constitution does not. That is a 
question left open to Congress. It is my understanding that it 
has been nine for about 150 years. But that is a matter of 
statute, not constitutional requirement.
    Senator Lee. So, it is statutory, a statutory decision, one 
that has stood for more than a century and a half. It is a 
decision, nonetheless, that has some bearing--could have some 
bearing on constitutional issues. Correct?
    Judge Barrett. Insofar as there would be more decision-
makers on the Court?
    Senator Lee. Yes. If we abandoned the longstanding 
historical practice and tradition of having nine Justices, 
could that have an impact on the way the three branches of 
Government interact with each other?
    Judge Barrett. Possibly, but it is difficult for me to 
imagine what specific constitutional question you are asking 
and, of course, if there were one I couldn't opine on it.
    Senator Lee. Of course. Of course.
    There are strong reasons, I believe, why, over the last--
more than a century and a half, we have left that number at 
nine. As you point out, there is nothing in the Constitution 
that requires it. We could come up with any number we wanted.
    There does have to be a Supreme Court and such inferior 
courts as we choose to create. But it does not specify the 
number of seats that could be on there.
    There are, nonetheless, good prudential reasons, reasons 
having to do with respect for the separation of powers between 
the three branches of Government, reasons that have over the 
last 150-plus years left us to leave that number at nine.
    The last time, as far as I can tell, there was any serious 
effort to move the number above nine was in the fall of 1936 
when President Franklin D. Roosevelt got tired of the so-called 
Four Horsemen of the Apocalypse, a few members of the Supreme 
Court who were consistently voting against his agenda and 
sometimes joined by one or more other members of the Supreme 
Court.
    He got particularly tired of this and so he proposed 
packing the court, and let me explain what I mean by packing 
the court here.
    What I mean when I refer to this is increasing the number 
of seats on the Supreme Court and doing so by statute with the 
intent of altering the composition of the Court for short-term 
political gain.
    That is what FDR wanted to do, notwithstanding the fact 
that he had an overwhelming supermajority in both Houses of 
Congress. Fortunately, FDR's idea that he pushed in the fall of 
1936 did not make it anywhere. It did not gain progress.
    It met enough opposition even with both Houses of Congress 
being overwhelmingly controlled by his political party that it 
stalled, quite mercifully, and it has remained ever since then 
at nine Justices. I think it would have been a colossal 
mistake.
    Joe Biden himself, as a U.S. Senator, as a Member of this 
body, in a proceeding of this Committee in 1983 gave a rousing 
speech that I recommend to all talking about that very thing, 
acknowledging that the Constitution does not require it but our 
respect for the separation of powers really ought to lead to us 
sticking to the number nine; do not pack the court.
    In recent days, I have seen some in the media, some in this 
body, try to redefine what it means to pack the court. Some 
have suggested, well, court packing takes various forms and it 
can mean confirming a lot of people all at once.
    Some have defined it so as to suggest that it consists of 
doing that which the Trump administration and the Republican 
Senate have been doing over the last 3\1/2\ years, which is 
filling vacancies as they have arisen and doing so with 
textualist originalist judges.
    This may not be something that some like, but this is not 
court packing. Court packing is itself manipulative. It is 
something that has great danger to do immense political and 
constitutional harm to our system of government, in part 
because it would set up a one-way ratchet.
    Once you create a position and confirm someone to that 
position, absent death, retirement, or impeachment and removal, 
that position remains in place.
    So if, for example, a future Congress and White House were 
to decide to get together and to pack the court and increase 
the number, say, to 11, and let us say it is Democrats who do 
that--and we have got Joe Biden now as a Presidential candidate 
who is refusing to say whether he would do it--there is a 
reason he is not saying whether he would do it.
    There is only one reason why you refuse to answer that 
question. It is you are wanting to be able to do it, but you do 
not want to take the heat for the fact that you are thinking 
about doing it right now.
    So, if they do that, where does it lead? Well, it 
inevitably leads to the point where the next time Republicans 
have control of both Houses of Congress and the White House 
they would increase it as well.
    You would end up increasing it incrementally. Before long, 
it looks like the Senate in ``Star Wars'' where you have got 
hundreds of people on there. I do not know what the total 
number would be.
    But you increase it at all, you change the number at all, 
you do so for partisan political purposes at all, you 
delegitimize the Court, and you cannot delegitimize the Court 
without fundamentally threatening and eroding and impairing 
some of our most valued liberties.
    You cannot do that without inevitably threatening things 
like religious freedom, things like free speech, things that 
are themselves often unpopular but are protected by the 
Constitution precisely because they are unpopular.
    And yes, in that respect, the Constitution is sometimes 
counter-democratic. Sometimes it can be described as 
fundamentally undemocratic.
    In fact, it is the whole reason to have a Constitution--is 
to protect us from the impulse of a majority that might be bent 
on harming the few in the name of the many.
    That is why the law is so important. That is why the 
position for which you are being considered is so essential. 
That is why we have got to do our job to make sure that the 
only people who get the job for which you have been nominated 
fit the bill.
    You, Judge Barrett, are someone in whom I have immense 
confidence, immense trust, and I look forward to voting to 
confirming you for that very position.
    Chairman Graham. Thanks, Senator Lee.
    We will take--let us come back at 12:45. We will start with 
Senator Whitehouse. We have 15 Senators left. If everybody 
takes the 30 minutes, that is 7\1/2\ hours. We will take a 
break for dinner tonight sometime later on and a short break. 
Are you doing okay?
    Judge Barrett. Mm-hmm.
    Chairman Graham. Three hours about right? So we will come 
back at 12:45 and right now we are on schedule to be here until 
9 o'clock. But we will do whatever the Committee wants.
    We are in recess until 12:45.
    [Whereupon the Committee was recessed and reconvened.]
    Chairman Graham. The hearing will come to order. Senator 
Whitehouse.
    Senator Whitehouse. Thank you, Chairman.
    Judge Barrett, you can take a bit of a breather on your 
return to the Committee because what I want to do is go through 
with the people who are watching this now the conversation that 
you and I had when we spoke on the telephone. You were kind 
enough to hear out a presentation that I made, and I intend to 
ask some questions in that area. But it does not make sense to 
ask questions if I have not laid the predicate, particularly 
for viewers who are watching this.
    So, I guess the reason that I want to do this is because 
people who are watching this need to understand that this small 
hearing room and the little TV box that you are looking at, the 
little screen that you are looking at, are a little bit like 
the frame of a puppet theater, and if you only look at what is 
going on in the puppet theater, you are not going to understand 
the whole story. You are not going to understand the real 
dynamic of what is going on here. And you are certainly not 
going to understand forces outside of this room who are pulling 
strings and pushing sticks and causing the puppet theater to 
react.
    So, first let me say, why do I think outside forces are 
here pulling strings? Well, part of it is behavior. We have 
colleagues here who supported you, this nominee, before there 
was a nominee. That is a little unusual. We have the political 
ram job that we have already complained of driving this process 
through at breakneck speed in the middle of a pandemic while 
the Senate is closed for safety reasons and while we are doing 
nothing about the COVID epidemic around us.
    We have some very awkward 180s from colleagues.
    [Poster is displayed.]
    Senator Whitehouse. Mr. Chairman, you figure in this. Our 
leader said back when it was Garland versus Gorsuch that, ``Of 
course, of course, the American people should have a say in the 
Court's direction.''
    ``Of course, of course,'' said Mitch McConnell. That is 
long gone. Senator Grassley said, ``The American people should 
not be denied a voice.'' That is long gone. Senator Cruz said, 
``You do not do this in an election year.'' That is long gone. 
And our Chairman made his famous ``hold the tape'' promise: 
``If an opening comes in the last year of President Trump's 
term, we will wait until the next election.'' That is gone, 
too.
    So, there is a lot of hard-to-explain hypocrisy and rush 
taking place right now, and my experience around politics is 
that when you find hypocrisy in the daylight, look for power in 
the shadows.
    Now, people may say, what does all this matter? This is a 
political parlor game. It is no big deal. Well, there are some 
pretty high stakes here that we have been talking about, here 
on our side.
    [Poster is displayed.]
    Senator Whitehouse. And I will tell you three of them right 
here: Roe v. Wade, Obergefell, and the Obamacare cases. Here is 
the GOP platform--the Republican platform. The platform of my 
colleagues on the other side of this aisle say that a 
Republican President will appoint judges who will reverse Roe, 
Obergefell, and the Obamacare cases.
    So, if you have a family member with an interest in some 
autonomy over their body under Roe v. Wade, the ability to have 
a marriage, to have friends marry, have a niece or a daughter 
or a son marry someone of their same sex, you have got a stake. 
And if you are one of the millions and millions of Americans 
who depend on the Affordable Care Act, you have got a stake.
    [Poster is displayed.]
    Senator Whitehouse. It is not just the platform. Over and 
over again, let us start by talking about the Affordable Care 
Act. Here is the President talking about this litigation that 
we are gearing up this nominee for, for November 10th. In this 
litigation he said, ``We want to terminate healthcare under 
Obamacare.'' That is the President's statement.
    So, when we react to that, do not act as if we are making 
this stuff up. This is what President Trump said. This is what 
your party platform says: ``Reverse the Obamacare cases.''
    Senator after Senator, including many in this Committee, 
filed briefs saying that the Affordable Care Act should be 
thrown out by courts. Why is it surprising for us to be 
concerned that you want this nominee to do what you want 
nominees to do?
    One quick stop on NFIB v. Sebelius, because a lot of this 
has to do with money.
    [Poster is displayed.]
    Senator Whitehouse. This is an interesting comparison. The 
National Federation of Independent Businesses, until it filed 
the NFIB v. Sebelius case, had its biggest donation ever of 
$21,000. In the year that it went to work on the Affordable 
Care Act, 10 wealthy donors gave $10 million. Somebody deserves 
a thank you.
    So, let us go on to Roe v. Wade.
    [Poster is displayed.]
    Senator Whitehouse. Same thing. Same thing. The President 
has said that reversing Roe v. Wade will happen automatically 
because he is putting pro-life Justices on the Court. Why would 
we not take him at his word? The Republican Party platform says 
it will reverse Roe. Why would we not comment on that and take 
you at your word?
    Senators here, including Senator Hawley, have said, ``I 
will vote only for nominees who acknowledge that Roe v. Wade is 
wrongly decided,'' and their pledge to vote for this nominee. 
Do the math. That is a really simple equation to run.
    The Republican brief in June Medical said, ``Roe should be 
overruled.'' So do not act surprised when we ask questions 
about whether that is what you are up to here.
    And, finally, out in the ad world that you have spared 
yourself, wisely, Judge Barrett, the Susan B. Anthony 
Foundation is running advertisements right now saying that you 
are set--you are set to give our pro-life country the Court 
that it deserves.
    [Poster is displayed.]
    Senator Whitehouse. There is the ad with the voice-over: 
``She's set.'' ``She's set.'' And then Roe, Obamacare cases, 
and Obergefell, gay marriage.
    [Poster is displayed.]
    Senator Whitehouse. The National Organization for Marriage, 
the big group that opposes same-sex marriage, says in this 
proceeding, ``All our issues are at stake.'' The Republican 
platform says it wants to reverse Obergefell. And the 
Republican brief filed in the case said same-sex relationships 
do not fall within any constitutional protection.
    So, when we say the stakes are high on this, it is because 
you have said the stakes are high on this. You have said that 
is what you want to do.
    [Poster is displayed.]
    Senator Whitehouse. So, how are people going about doing 
it? What is the scheme here?
    Let me start with this one.
    [Poster is displayed.]
    Senator Whitehouse. In all cases, there is big anonymous 
money behind various lanes of activity. One lane of activity is 
through the conduit of the Federalist Society. It is managed by 
a guy--was managed by a guy named Leonard Leo, and it has taken 
over the selection of judicial nominees. How do we know that to 
be the case? Because Trump has said so over and over again. His 
White House counsel said so. So we have an anonymously funded 
group controlling judicial selection run by this guy Leonard 
Leo.
    Then in another lane, we have, again, anonymous funders 
running through something called the Judicial Crisis Network, 
which is run by Carrie Severino, and it is doing PR and 
campaign ads for Republican judicial nominees. It got a single 
$17 million donation in the Garland-Gorsuch contest. It got 
another single $17 million donation to support Kavanaugh. 
Somebody, perhaps the same person, spent $35 million to 
influence the makeup of the United States Supreme Court. Tell 
me that is good.
    And then over here you have a whole array of legal groups 
also funded by dark money which have a different role. They 
bring cases to the Court. They do not wind their way to the 
Court, Your Honor, they get shoved to the Court by these legal 
groups, many of which ask to lose below so they can get quickly 
to the Court to get their business done there. And then they 
turn up in a chorus, an orchestrated chorus of amici.
    Now, I have had a chance to have a look at this, and I was 
in a case, actually, as an amicus myself.
    [Poster is displayed.]
    Senator Whitehouse. The Consumer Financial Protection 
Bureau case, and in that case there were 1, 2, 3, 4, 5, 6, 7, 
8, 9, 10, 11 amicus briefs filed, and every single one of them 
was a group funded by something called Donors Trust. Donors 
Trust is a gigantic identity-scrubbing device for the right 
wing so that it says Donors Trust is the donor without whoever 
the real donor is. It does not have a business. It goes not 
have a business plan. It does not do anything. It is just an 
identity scrubber.
    And this group here, the Bradley Foundation, funded 8 out 
of the 11 briefs. That seems weird to me when you have amicus 
briefs coming in little flotillas that are funded by the same 
groups but nominally separate in the Court. So I actually 
attached this to my brief as an appendix.
    The Center for Media and Democracy saw it, and they did 
better work.
    [Poster is displayed.]
    Senator Whitehouse. They went on to say which foundations 
funded the brief writers in that CFPB case. Here is the Bradley 
Foundation for $5.6 million to those groups. Here is Donors 
Trust, $23 million to those brief-writing groups. The grand 
total across all the donor groups was $68 million to the groups 
that were filing amicus briefs pretending that they were 
different groups. And it is not just in the Consumer Financial 
Protection Bureau case. You might say, well, that was just a 
one-off.
    [Poster is displayed.]
    Senator Whitehouse. Here is Janus, the anti-labor case that 
had a long trail through the courts, through Friedrichs and 
through Knox and through other decisions, and SourceWatch and 
ProPublica did some work about this. Here is Donors Trust and 
Donors Capital Fund, and here is the Bradley Foundation, and 
they totaled giving $45 million to the 1, 2, 3, 4, 5, 6, 7, 8, 
9, 10, 11, 12, 13, 14, 15 groups that filed amicus briefs 
pretending to be different groups, and both of the lawyer 
groups in the case, funded by Donors Trust, funded by Bradley 
Foundation in Janus. This is happening over and over and over 
again, and it goes beyond just the briefs. It goes beyond just 
the amicus presentations.
    [Poster is displayed.]
    Senator Whitehouse. The Federalist Society, remember this 
group that is acting as the conduit and that Donald Trump has 
said is doing his judicial selection? They are getting money 
from the same foundations: from Donors Trust, $16.7 million; 
from the Bradley Foundation, $1.37 million; from the same group 
of foundations total, $33 million. So you can start to look at 
these, and you can start to tie them together.
    [Poster is displayed.]
    Senator Whitehouse. The legal groups, all the same funders 
over and over again, bringing the cases and providing this 
orchestrated--orchestrated chorus of amici. Then the same group 
also funds the Federalist Society over here. The Washington 
Post wrote a big expose about this, and that made Leonard Leo a 
little hot, a little bit like a burned agent. So he had to jump 
out, and he went off to go and do anonymously funded voter 
suppression work. Guess who jumped in to take over the 
selection process in this case for Judge Barrett? Carrie 
Severino made the hop so, once again, ties right in together.
    [Poster is displayed.]
    Senator Whitehouse. So, the Center for Media and Democracy 
has done a little bit more research. Here is a Bradley 
Foundation memo that they have published. The Bradley 
Foundation is reviewing a grant application asking for money 
for this orchestrated amicus process. And what did they say in 
the staff recommendation? ``It is important to orchestrate''--
their word, not mine--``important to orchestrate high-caliber 
amicus efforts before the Court.''
    They also note that Bradley has done ``previous 
philanthropic investments in the actual underlying legal 
actions.'' So, Bradley is funding--what do they call--
philanthropically investing in the underlying legal action and 
then giving money to groups to show up in the orchestrated 
chorus of amici. That cannot be good.
    And it goes on, because they also found this email.
    [Poster is displayed.]
    Senator Whitehouse. This email comes from an individual at 
the Bradley Foundation, and it asks our friend Leonard Leo, who 
used to run the selection process, ``Is there a 501(c)(3) 
nonprofit to which Bradley could direct any support of the two 
Supreme Court amicus projects other than Donors Trust?'' I do 
not know why they wanted to avoid the reliable identity 
scrubber, Donors Trust, but for some reason they did.
    So Leonard Leo writes back, on Federalist Society address--
so do not tell me that this is not Federalist Society 
business--on Federalist Society--on his address, he writes 
back, ````Yes,'' send it to the ``Judicial Education Project'' 
which ``could take and allocate'' the money. And guess who 
works for the Judicial Education Project? Carrie Severino, who 
also helped select this nominee, running the Trump-Federalist 
Society selection process.
    So, the connections abound.
    [Poster is displayed.]
    Senator Whitehouse. In The Washington Post article, they 
point out that the Judicial Crisis Network's office is on the 
same hallway and the same building as the Federalist Society, 
and that when they sent their reporter to talk to somebody at 
the Judicial Crisis Network, somebody from the Federalist 
Society came down to let them up.
    [Poster is displayed.]
    Senator Whitehouse. This more and more looks like it is not 
three schemes, but it is one scheme, with the same funders 
selecting judges, funding campaigns for the judges, and then 
showing up in court in these orchestrated amicus flotillas to 
tell the judges what to do.
    [Poster is displayed.]
    Senator Whitehouse. On the Judicial Crisis Network, you 
have got the Leonard Leo connection. Obviously, she hopped in 
to take over for him with the Federalist Society. You have got 
the campaigns that I have talked about where they take $17 
million contributions. That is a big check to write, $17 
million, to campaign for Supreme Court nominees. No idea who 
that is or what they got for it. You have got briefs that she 
wrote. The Republican Senators filed briefs in that NFIB case 
signed by Ms. Severino--the woman who helped choose this 
nominee has written briefs for Republican Senators attacking 
the ACA. Do not say the ACA is not an issue here.
    And, by the way, the Judicial Crisis Network funds the 
Republican Attorneys General. It funds RAGA, the Republican 
Attorneys General Association, and it funds individual 
Republican Attorneys General. And guess who the plaintiffs are 
in the Affordable Care Act case? Republican Attorneys General. 
Trump joined them because he did not want to defend, so he is 
in with the Republican Attorneys General.
    But here is the Judicial Crisis Network campaigning for 
Supreme Court nominees, writing briefs for Senators against the 
Affordable Care Act, supporting the Republicans who are 
bringing this case, and leading the selection process for this 
nominee.
    Here is the page off the brief.
    [Poster is displayed.]
    Senator Whitehouse. Here is where they are. Mitch McConnell 
and on through the list--Senator Collins, Senator Cornyn, 
Senator Hoeven, Senator--who is still here? Marco Rubio. It is 
a huge assortment of Republican Senators who Carrie Severino 
wrote a brief for against, against, against the Affordable Care 
Act.
    So, this is a, to me, pretty big deal. I have never seen 
this around any court that I have ever been involved with where 
there is this much dark money and this much influence being 
used.
    [Poster is displayed.]
    Senator Whitehouse. Here is how The Washington Post summed 
it up: ``This is a conservative activist's behind-the-scenes 
campaign to remake the Nation's courts,'' and it is a $250 
million dark money operation--$250 million is a lot of money to 
spend if you are not getting anything for it. So that raises 
the question: What are they getting for it? Well, I showed the 
slide earlier on the Affordable Care Act and on Obergefell and 
on Roe v. Wade. That is where they lost. But with another 
judge, that could change. That is where the contest is. That is 
where the Republican Party platform tells us to look at how 
they want judges to rule to reverse Roe, to reverse the 
Obamacare cases, and to reverse Obergefell and take away gay 
marriage. That is their stated objective and plan. Why not take 
them at their word?
    But there is another piece of it, and that is, not what is 
ahead of us, but what is behind us. What is behind us is now 80 
cases, Mr. Chairman--80 cases--under Chief Justice Roberts that 
have these characteristics.
    One, they were decided 5-to-4 by a bare majority.
    Two, the 5-to-4 majority was partisan in the sense that not 
one Democratic appointee joined the Five. I refer to that group 
as the ``Roberts Five.'' It changes a little bit, as with 
Justice Scalia's death, for instance, but there has been a 
steady Roberts Five that has delivered now 80 of these 
decisions.
    And the last characteristic of them is that there is an 
identifiable Republican donor interest in those cases, and in 
every single case that donor interest won. It was an 80-to-0, 
5-to-4 partisan rout, ransacking. And it is important to look 
at where those cases went because they are not about big public 
issues like getting rid of the Affordable Care Act, undoing Roe 
v. Wade, and undoing same-sex marriage. They are about power.
    And if you look at those 80 decisions, they fall into four 
categories over and over and over again.
    One, unlimited and dark money in politics. Citizens United 
is the famous one, but it has continued since with McCutcheon, 
and we have got one coming up now. Always the Five for 
unlimited money in politics, never protecting against dark 
money in politics despite the fact that they said it was going 
to be transparent. And who wins when you allow unlimited dark 
money in politics? A very small group, the ones who have 
unlimited money to spend and a motive to spend it in politics. 
They win. Everybody else loses.
    [Poster is displayed.]
    Senator Whitehouse. And if you are looking at who might be 
behind this, let us talk about people with unlimited money to 
spend and a motive to do it. We will see how that goes.
    Next, knock the civil jury down. Whittle it down to a nub. 
The civil jury was in the Constitution, in the Bill of Rights, 
in our darned Declaration of Independence. But it is annoying 
to big corporate powers because you can swagger your way as a 
big corporate power through Congress. You can go and tell the 
President you put money in, to elect, what to do. He will put 
your stooges in the EPA.
    It is all great until you get to the civil jury because 
they have an obligation, as you know, Judge Barrett, they have 
an obligation under the law to be fair to both parties 
irrespective of their size. You cannot bribe them. You are not 
allowed to. It is a crime to tamper with a jury. It is standard 
practice to tamper with Congress. And they make decisions based 
on the law.
    If you are used to being the boss and swaggering your way 
around the political side, you do not want to be answerable 
before a jury. And so one after another, these 80 5-to-4 
decisions have knocked down, whittled away at the civil jury, a 
great American institution.
    Third--first was unlimited dark money. Second was demean 
and diminish the civil jury. Third is weaken regulatory 
agencies. A lot of this money, I am convinced, is polluter 
money. The Koch Industries is a polluter. The fossil fuel 
industry is a polluter. Who else would be putting buckets of 
money into this and wanting to hide who they are behind Donors 
Trust or other schemes?
    And if you are a big polluter, what do you want? You want 
weak regulatory agencies. You want ones that you can box up and 
run over to Congress and get your friends to fix things for you 
in Congress. Over and over and over again, these decisions are 
targeted at regulatory agencies to weaken their independence 
and weaken their strength. And if you are a big polluter, a 
weak regulatory agency is your idea of a good day.
    And the last thing is in politics, in voting. Why on Earth 
the Court made the decision, a factual decision, not something 
appellate courts are ordinarily supposed to make, as I 
understand it, Judge Barrett--the factual decision that nobody 
needed to worry about minority voters in preclearance States 
being discriminated against or that legislators would try to 
knock back their ability to vote? These Five made that finding 
in Shelby County, against bipartisan legislation from both 
Houses of Congress, hugely passed, on no factual record. They 
just decided that that was a problem that was over, on no 
record, with no basis, because it got them to the result that 
we then saw.
    What followed? State after State after State passed voter 
suppression laws, one so badly targeting African Americans that 
two courts said it was surgically--surgically tailored to get 
after minority voters.
    And gerrymandering, the other great control, bulk 
gerrymandering where you go into a State like the Red Map 
Project did in Ohio and Pennsylvania, and you pack Democrats so 
tightly into a few districts that all the others become 
Republican majority districts.
    And in those States you send a delegation to Congress that 
has a huge majority of Republican members, like 13 to 5, as I 
recall, in a State where the 5, the party of the 5 actually won 
the popular vote. You have sent a delegation to Congress that 
is out of step with the popular vote of that State, and court 
after court figured out how to solve that, and the Supreme 
Court said, ``Nope,'' 5-to-4 again, ``Nope, we are not going to 
take an interest in that question.''
    In all these areas where it is about political power for 
big special interests and people want to fund campaigns and 
people want to get their way through politics without actually 
showing up, doing it behind Donors Trust and other groups, 
doing it through these schemes. Over and over and over again, 
you see the same thing. Eighty decisions, Judge Barrett, 80 
decisions, an 80-to-0 sweep. I do not think you have tried 
cases, but some cases, the issue was bias and discrimination.
    And if you are making a bias case as a trial lawyer--
Lindsey Graham was a hell of a good trial lawyer. If he wanted 
to make a bias case--Dick Durbin is a hell of a good trial 
lawyer. If they wanted to make a bias case and they could show 
an 80-to-0 pattern, (a) that is admissible, and (b) I would 
love to make that argument to the jury. I would be really hard 
pressed to be the lawyer saying, ``No, 80-to-0, it is just a 
bunch of flukes.'' All 5-4, all partisan, all this way.
    So, something is not right around the Court, and dark money 
has a lot to do with it. Special interests have a lot to do 
with it. Donors Trust and whoever is hiding behind Donors Trust 
has a lot to do with it. And the Bradley Foundation 
orchestrating its amici over at the Court has a lot to do with 
it.
    So, I thank you, Judge Barrett, for listening to me now a 
second time, and I think this gives you a chance for you and I 
to tee up an interesting conversation tomorrow, and I thank my 
colleagues for hearing me out.
    Chairman Graham. Thank you, Senator Whitehouse. Senator 
Cruz.
    Senator Whitehouse. Oh, Mr. Chairman, can I put three 
letters in, unanimous consent?
    Chairman Graham. Without objection.
    Senator Whitehouse. Thank you.
    [The information appears as submissions for the record.]
    Senator Cruz. Thank you, Mr. Chairman. Judge Barrett, 
welcome. Congratulations on being nominated. Congratulations on 
enduring the confirmation proceedings. And I think it is a 
particularly good thing we have made it through what I guess 
you would call the top of the lineup of the questioning, and 
some of the smartest and, frankly, most effective questioners 
on the Democratic side, and I think it speaks volumes that 
collectively they have had very few questions for you, and 
virtually none calling into question your credentials, which 
are impeccable, your record, and what I think has been an 
extraordinary life you have led. So, that should be the source 
of great satisfaction in terms of the scholarly record and 
judicial record that you have spent a lifetime building.
    I want to start by asking you a question. Why is the First 
Amendment's protection of religious liberty, why is that 
important?
    Judge Barrett. Well, I think it is broadly viewed that the 
Framers protected--and ratifiers protected the free exercise of 
religion because, you know, for reasons that we all know from 
history of persecuted religious minorities fleeing to the 
United States, that enshrining that protection, you know, it 
was one in the Bill of Rights because it was considered so 
fundamental.
    Senator Cruz. And why does that matter to Americans? What 
difference does that make in anybody's life?
    Judge Barrett. Well, I think all of the Bill of Rights, 
each and every one of them, is important to Americans because 
we value the Constitution, including religious liberty.
    Senator Cruz. How about the free speech protections of the 
First Amendment? Why are those important?
    Judge Barrett. So that minority viewpoints cannot be 
squashed, so that it is not just the majority that can speak 
popular views. You do not really need the First Amendment if 
what you are saying is something that everybody wants to hear. 
You need it when people are trying to silence you.
    Senator Cruz. And how about the Second Amendment? Why is 
the right to keep and bear arms important?
    Judge Barrett. Well, you know, we talked about Heller 
earlier this morning and, you know, what Heller tells us is 
that the Second Amendment protects an individual right to bear 
arms for self-defense.
    Senator Cruz. Well, I think all of those rights, and I 
agree with you, the entire Bill of Rights is incredibly 
important to Americans. I also think what is really striking 
about this hearing today and also yesterday is that Senate 
Democrats are not defending what I think is really a radical 
agenda that they have when it comes to the Bill of Rights. And 
the topics they are discussing today have little bearing to the 
rights that are really at issue and in jeopardy at the Supreme 
Court. And so let us take a few minutes to go through them.
    First of all, we have had some discussion of Roe v. Wade. 
You have declined to give an opinion on a matter that might be 
pending before the Court. That is, of course, the same answer 
that every single sitting Justice has given when he or she was 
sitting in the same chair you are. It is mandated by the 
Judicial Canons of Ethics. Whether one is a nominee of a 
Democratic President or a Republican President, that has been 
the answer that has been given to this Committee for decades.
    But I do think it is interesting that our Democratic 
colleagues, number one, do not discuss what would actually 
happen if there came a day on which Roe v. Wade were overruled, 
which is namely that it would not suddenly become the case that 
abortion was illegal, but, rather, it would revert to the 
status of the law as it has been for nearly 200 years of our 
Nation's history, which is that the question of the 
permissibility of abortion is a question for elected 
legislatures at the State level and at the Federal level. And 
it is difficult to dispute that there are a great many 
jurisdictions, including jurisdictions like California and New 
York, who, even if Roe v. Wade were no longer the law of the 
land, their elected legislatures would almost certainly 
continue unrestricted access to abortion with virtually no 
limitations.
    What I find interesting, though, is that our Democratic 
colleagues do not discuss what is really the radical position 
of the most liberal Justices on the Supreme Court, which is 
that no restrictions whatsoever are permissible when it comes 
to abortion. Yesterday, one of the Democratic Senators made 
reference to the case Gonzales v. Carhart. I am quite familiar 
with that case, and I represented Texas and a number of other 
States as amici in that case. That case concerned the 
constitutionality of the Federal ban on partial-birth abortion. 
That was legislation that passed Congress, was signed into law 
that made the really gruesome practice of partial-birth 
abortion illegal. Overwhelming majority of Americans believe 
partial-birth abortion should be prohibited, even those who 
identify as pro-choice. A significant percentage of Americans 
do not want to see that gruesome practice allowed.
    The Supreme Court by a vote of 5-to-4 in Carhart v. 
Gonzales upheld the Federal ban on partial-birth abortion. That 
means there were four Justices ready to strike it down, ready 
to conclude that you cannot ban partial-birth abortion, that 
you cannot ban late-term abortion. And, by the way, other 
restrictions that are at question include parental consent 
laws, parental notification laws. None of our Democratic 
colleagues want to talk about the Justices they want to see on 
the Court would strike down every single reasonable restriction 
on unlimited abortion on demand that the vast majority of 
Americans support.
    How about free speech? Well, we have heard quite a bit 
about free speech. The Senator from Rhode Island just gave a 
long presentation, complete with lots of charts. I will say a 
couple of things on free speech.
    First of all, our Democratic colleagues, when they address 
the issue of so-called dark money in campaign finance 
contributions are often deeply, deeply hypocritical and do not 
address the actual facts that exist. Here are some facts.
    Of the top 20 organizations spending money for political 
speech in the year 2016, 14 of them gave virtually all of their 
money to Democrats, and another 3 split their money evenly. So 
only 3 of the top 20 gave money to Republicans. What did that 
mean in practice? That meant the top 20 super PAC donors 
contributed $422 million to Democrats and $189 million to 
Republicans. Those who give these impassioned speeches against 
dark money do not mention that their side is funded by dark 
money with a massive differential.
    The Senator from Rhode Island talked about big corporate 
powers without acknowledging that the contributions from the 
Fortune 500 in this Presidential election overwhelmingly favor 
Joe Biden and the Democrats, without acknowledging that the 
contributions from Wall Street in this election overwhelmingly 
favor Joe Biden and the Democrats.
    There is an awful lot of rhetoric about power, but it gets 
even more interesting when you look at Supreme Court 
nominations. We just heard an attack on the Federalist Society, 
a group that I have been a member of for over 25 years. I 
joined as a law student. It is a group that brings 
conservatives, libertarians, constitutionalists together to 
have robust discussions about the Constitution and about the 
law. What is interesting is nowhere in the Senator from Rhode 
Island's remarks was any reference to a company called Arabella 
Advisors, which is a for-profit entity that manages nonprofits, 
including the Sixteen Thirty Fund and the New Venture Fund.
    Now, what on Earth are those? Those sound like awfully dark 
and can be confusing names. Well, according to the Wall Street 
Journal this Sunday, in the year 2017 and 2018 those entities 
reported $987.5 million in revenue. That is nearly $1 billion. 
We heard a lot of thundering indignation at what was described 
as $250 million of expenditures. In this case you have got $1 
billion. The Senator from Rhode Island said that that much 
money, much of which is dark money that we do not know who 
contributed it, he asked, ``What are they getting for it?'' 
And, by the way, one of the things they are getting for it is a 
group called ``Demand Justice,'' a project of those entities, 
spent $5 million opposing Justice Brett Kavanaugh, and has just 
launched a seven-figure ad buy opposing your confirmation.
    So, all of the great umbrage about the corporate interests 
are spending dark money is wildly in conflict with the actual 
facts that the corporate interests that are spending dark money 
are funding the Democrats by a factor of 3-to-1 or greater--a 
fact that does not ever seem to be acknowledged.
    But not only that, what was Citizens United about? You 
know, it is interesting, most people at home, they have heard 
about Citizens United. They know it makes Democrats very, very 
upset. But they do not actually know what the case is about. 
Citizens United concerned whether or not it was legal to make a 
movie criticizing a politician. Specifically, Citizens United 
is a small nonprofit organization based here in DC that made a 
movie that was critical of Hillary Clinton. And the Obama 
Justice Department took the position that it could fine, it 
could punish Citizens United for daring to make a movie 
critical of a politician.
    The case went all the way to the U.S. Supreme Court. At the 
oral argument there was a moment that was truly chilling. 
Justice Sam Alito asked the Obama Justice Department, ``Is it 
your position under your theory of the case that the Federal 
Government can ban books?'' And the Obama Justice Department 
responded, ``Yes.'' ``Yes, it is our position that if the books 
criticize a political candidate, a politician, the Federal 
Government can ban books.''
    As far as I am concerned, that is a terrifying view of the 
First Amendment. Citizens United was decided 5-to-4. By a 
narrow 5-4 majority, the Supreme Court concluded the First 
Amendment did not allow the Federal Government to punish you 
for making a movie critical of a politician and, likewise, that 
the Federal Government could not ban books.
    Four Justices dissented. Four Justices were willing to say 
the Federal Government can ban books and--can ban movies and 
presumably could ban books as well. When Hillary Clinton was 
running for President, she explicitly promised every Justice 
she nominated to the Court would pledge to overturn Citizens 
United. By the way, Hillary Clinton said she would demand of 
her nominees something you have rightly said that this 
administration has not demanded of you, which is a commitment 
on any case as to how you will rule. Democrats have shown no 
compunction in expecting their nominees to make a promise, here 
is how I am going to vote on a pending case, judicial ethics be 
damned.
    How about the Second Amendment? We have heard some 
reference to the Heller decision. Senator from Connecticut 
yesterday talked about reasonable gun control and gun safety 
provisions. Well, that, of course, was not what was at stake in 
the Heller decision. Number one, the majority decision in 
Heller, Justice Scalia's opinion, acknowledges reasonable 
provisions, things like prohibitions on felons and possession 
are permissible. Your opinion in the Kanter decision likewise 
acknowledged that restrictions preventing dangerous criminals 
from receiving firearms are entirely consistent and permissible 
under the Second Amendment.
    But the issue in Heller was much more fundamental. It was 
whether the Second Amendment protects an individual right to 
keep and bear arms at all. The vote in Heller was 5-to-4. By a 
vote of 5-to-4, the majority struck down the District of 
Columbia's total prohibitions on owning an operative firearm in 
the District of Columbia. The argument of the four dissenters 
was not what our Democratic colleagues talk about here. It was 
not some reasonable gun control provisions are okay. That was 
not the argument of the dissenters. That question we can 
actually have a reasonable debate on. Reasonable minds can 
differ on what the appropriate line should be, what are 
reasonable laws there, but that was not what was at issue in 
Heller. The position of the four dissenters was the Second 
Amendment protects no individual right to keep and bear arms 
whatsoever, but merely a, quote, ``collective right of the 
militia,'' which is fancy lawyer talk for a nonexistent right.
    Four Justices would have ruled that way. One vote away. The 
consequences of the Court concluding that there is no 
individual right under the First Amendment would mean you and I 
and every American watching this would lose your Second 
Amendment right. It would mean the Federal Government, the 
State government, the city could ban guns entirely, could make 
it a criminal offense for any one of us to own a firearm, and 
no individual American would have any judicially cognizable 
right to challenge that. That is a radical reading of the 
Constitution. That is effectively erasing the Second Amendment 
from the Bill of Rights.
    And Hillary Clinton likewise promised in 2016 that every 
Justice she nominated would commit to voting to overturn 
Heller. They were big on litmus tests. And Joe Biden, although 
he refuses to answer just about anything, about whether or not 
he is going to pack the court, he did tell the American people 
the voters do not deserve to know whether he is going to pack 
the court, truly a statement of disrespect and contempt for the 
voters, unusual in our political process.
    One vote away from the Second Amendment being erased from 
the Bill of Rights. None of our Democratic colleagues admit 
that that is their agenda, and yet those are the Justices that 
Democratic Presidential nominees are promising they will 
appoint: Justices who will take away your right to criticize 
politicians, Justices who will allow censorship, Justices who 
will allow movies and books to be banned, Justices who will 
erase the Second Amendment from the Bill of Rights.
    And how about religious liberty? Religious liberty is an 
issue near and dear to a great many of us. The right of every 
American to live according to your faith, according to your 
conscience, whatever that faith may be. Religious liberty is 
fundamentally about diversity. It is about respecting diversity 
that whatever your faith tradition might be, the Government is 
not going to trample on it. Religious liberty cases over and 
over again have been decided 5-4. The case of Van Orden v. 
Perry, a case I litigated, dealt with the Ten Commandments 
monument that stands on the State Capitol grounds. It has been 
there since 1961 in Texas. An individual plaintiff, an atheist, 
a homeless man filed a lawsuit seeking to tear down the Ten 
Commandments. The case went all the way to the U.S. Supreme 
Court. It was decided 5-to-4. Four Justices were willing to 
say, in effect, send in the bulldozers and tear down that 
monument because you cannot gaze on the image of the Ten 
Commandments on public land.
    Another case, the Mojave Desert Veterans Memorial, this is 
a memorial erected to the men and women who gave their lives in 
World War I. It is a lone white Latin cross, simple and bare in 
the middle of the desert. I have been there on Sunrise Rock 
where it stands. The ACLU filed a lawsuit saying you cannot 
gaze on the image of a cross on public land, and the ACLU won 
in the district court. They won in the Ninth Circuit Court of 
Appeals. The Federal courts ordered that Veterans Memorial to 
be covered up with a burlap sack with a chain on the bottom and 
then a plywood box.
    When the case went to the U.S. Supreme Court, I represented 
3 million veterans pro bono, for free, defending that Veterans 
Memorial. We won 5-4. And there were four Justices prepared to 
say tear down the Veterans Memorial, and under the reasoning 
that they put forth, they were not far away from saying bring 
out the chisels and remove the crosses and the Stars of David 
on the tombstones, of the men and women that gave their lives, 
at Arlington Cemetery defending this Nation. That is a radical 
view, and we are one vote away. That is utterly contrary to the 
text of the First Amendment, to the understanding of the First 
Amendment.
    When we argued the Ten Commandments case in the U.S. 
Supreme Court, there was more than a little bit of irony in 
that. Do you know how many times the image of the Ten 
Commandments appears in the courtroom of the Supreme Court? The 
answer to that is 43. There are two images of the Ten 
Commandments carved on the wooden doors as you walk out of the 
courtroom. You will soon be sitting looking at them. There are 
40 images of the Ten Commandments on the bronze gates on both 
sides of the courtroom. And then, Judge Barrett, when you are 
sitting at the Bench, above your left shoulder will be a phrase 
you know well, a phrase carved into the wall of great 
lawgivers, one of whom is Moses. He is standing there holding 
the Ten Commandments, the text of which is legible in Hebrew, 
as he looks down upon the Justices, and four Justices were 
willing to say in effect bring out the sandblasters because we 
must remove God from the public square.
    That is a profound threat to our religious liberty, and I 
would note that it does not just extend to public 
acknowledgments. It also extends to religious liberty. The 
Little Sisters of the Poor are a Catholic convent of nuns who 
take oaths of poverty, who devote their lives to caring for the 
sick, caring for the needy, caring for the elderly. And the 
Obama administration litigated against the Little Sisters of 
the Poor seeking to fine them in order to force them to pay for 
abortion-inducing drugs, among others. Truly a stunning 
situation when you have the Federal Government litigating 
against nuns.
    The Supreme Court decided the Hobby Lobby case, another 
case routinely denounced by Senate Democrats. The Hobby Lobby 
case concluded that the Federal Government could not 
permissibly force a Christian business to violate their faith. 
It reflected the religious liberty traditions of our country 
that you can live according to your faith without the 
Government trampling on it. You know what this body did, I am 
sorry to say? Senate Democrats introduced legislation to gut 
the Religious Freedom Restoration Act. The Religious Freedom 
Restoration Act, when it passed this body, passed with an 
overwhelming bipartisan majority. Senate Democrats, including 
Chuck Schumer and Joe Biden and Ted Kennedy, all voted for the 
Religious Freedom Restoration Act. Democratic President Bill 
Clinton signed the Religious Freedom Restoration Act. And yet 
in the wake of the Hobby Lobby decision, this body voted on 
legislation to just gut the protections for religious liberty, 
and I am sorry to say every single Senate Democrat voted to do 
so. Not a single one, zero, would defend religious liberty.
    Joe Biden has already pledged if he is elected he plans to 
initiate again the attack on the Little Sisters of the Poor. 
Now, it is interesting, folks in the press like to talk about 
Pope Francis, and on some issues Pope Francis has been vocal 
when it comes to the environment, when it comes to issues 
concerning immigration. The Pope has been vocal on issues that 
our Democratic colleagues like and agree with. The press is 
happy to amplify those views. Somehow missing from that 
amplification is acknowledgment that when the Pope came to the 
United States, in Washington, he went and visited the Little 
Sisters of the Poor. Here in DC--he went to their home, here in 
DC, and the Vatican explained he did so because he wanted to 
highlight their cause, that the Federal Government should not 
be persecuting nuns for living according to their faith. That 
is what is at stake in these nominations. And you will not hear 
any of that from the Senate Democrats on this Committee. That 
is why their base is so angry at your nomination, Judge 
Barrett, because they do not believe you are going to join the 
radical efforts to erase those fundamental rights from the Bill 
of Rights.
    I believe that issue, preserving the Constitution, 
preserving the Bill of Rights, our fundamental liberties, I 
believe is the most important issue facing the country in the 
November elections. And I think for those of us who value those 
rights, we should take solace in the fact that not a single 
Democrat is willing even to acknowledge the radical sweep of 
their agenda, much less defend it. They know it is wildly 
unpopular, and, look, right at the heart of this is a decision 
many Democrats have made to abandon democracy.
    You see, most policies, policies like Obamacare, policies 
like healthcare, most policies under our constitutional system 
were meant to be decided by democratically elected 
legislatures. Why? So they can be accountable to the people. So 
if the voters disagree, they can throw the bums out. But too 
many Democrats have decided today that democracy is too 
complicated, it is too hard to actually convince your fellow 
Americans of the merits of your position. It is much easier 
just to give it to the courts, find five lawyers in black robes 
and let them decree the policy outcome you want, which makes 
your radical base happy, presumably makes the millions if not 
billions in dark money being spent for Democrats happy, without 
actually having to justify it to the American people.
    Judge Barrett, I am not going to ask you to respond to any 
of that, but I do want to shift to a different topic which is a 
bit more about you personally, your background.
    Judge Barrett, do you speak any foreign languages?
    Judge Barrett. Once upon a time I could speak French, but I 
have fallen woefully out of practice, so please do not ask me 
to do that right now.
    Senator Cruz. You can be assured of that, because I had 2 
years of high school French, and I suspect yours remains much 
better than mine.
    How about music? Do you play any instruments?
    Judge Barrett. The piano.
    Senator Cruz. Do you? How long have you played the piano?
    Judge Barrett. Well, I played the piano growing up for 10 
years, and now most of my piano playing consists of playing my 
children's songs for them and supervising their own piano 
practice. I look forward, one day, when I have more time to be 
able to choose some of my own music.
    Senator Cruz. Now, do the kids do piano lessons as well?
    Judge Barrett. The kids do piano lessons. Some of the older 
ones who are in high school have gotten so busy with sports and 
those things that they have stopped, but the younger children 
do.
    Senator Cruz. Our girls are 9 and 12, and they both do 
piano lessons. And I will say at least in our household it is 
less than voluntary.
    [Laughter.]
    Senator Cruz. You know, one of the things Heidi and I 
found, particularly the last 6 months during COVID, which has 
been an extraordinary crisis, is just with two kids at home, 
that doing distance learning when schools were shut down was 
really hard for us with two children. For you and your husband, 
you have got seven kids. How did you all manage through the 
lockdowns and distance learning? What was that like in the 
Barrett household?
    Judge Barrett. Well, it was a challenging time, as it was 
for every American. Our oldest daughter, Emma, who is in 
college, moved home at that point because she is at Notre Dame. 
It's closed. So, Emma obviously could manage her own e-
learning. And our high school-aged children, Tess and Vivian, 
could, too. But Jesse and I just tried to take a divide-and-
conquer approach for the younger four, and, yes, it was quite 
challenging, I assure you.
    Senator Cruz. One part of your story that I find 
particularly remarkable and that I admire is the decision you 
made to adopt two children. You and your husband had five 
biological children. You adopted two more. Both of your adopted 
children are from Haiti. Haiti is a country that has some of 
the most crushing poverty in the world. My brother-in-law is a 
missionary in Haiti, and actually, Heidi and the girls just got 
back from Haiti a couple weeks ago.
    I was curious if you would share with this Committee and 
with the American people what led you and your husband to make 
the decision to adopt. It is, I think, one of the most loving 
and compassionate decisions any family can make.
    Judge Barrett. When Jesse and I were engaged, we met 
another couple who had adopted--in this instance, it was a 
couple who had adopted a child with special needs. And then we 
also met another couple who had adopted a few children 
internationally, and we decided at that point while we were 
engaged that at some point in the future we wanted to do that 
ourselves. And I guess we had imagined initially that we would 
have whatever biological kids that we had decided to have and 
then adopt at the end. But after we had our first daughter, 
Emma, we thought, well, why wait? So I was expecting Tess when 
we went and got Vivian. So she and Tess function--we call them 
our ``fraternal twins.'' They are in the same grade. And it 
really has enriched our family immeasurably. And, you know, 
once we had adopted Vivian at that point, then we made the 
decision that we definitely wanted to adopt again. And so 
several years later, John Peter entered our family.
    Senator Cruz. So your children have been wonderfully well 
behaved. I think you are an amazing role model for little 
girls. What advice would you give little girls?
    Judge Barrett. Well, what I am saying is not designed--my 
brother now has left. I was just thinking of what my dad told 
me before the spelling bee about anything boys can do, girls 
can do better. And since my sons are sitting behind me, I will 
also say but boys are great, too.
    Senator Cruz. Thank you.
    Chairman Graham. Thank you.
    Senator Klobuchar.
    Senator Klobuchar. Thank you very much, Mr. Chair.
    Welcome again, Judge. Since I have the draw to always 
follow Senator Cruz, I did want to make one thing clear after 
listening to that for a half hour, that Joe Biden is Catholic, 
and he is a man of faith.
    And then I want to turn to something else, and that is that 
we need a reset here, in my mind, for the people at home, a bit 
of a reality check, that this is not normal right now. We have 
to understand what people are dealing with, that 7.7 million 
people have gotten this virus, that 214,000 Americans have 
died.
    And for people watching at home and wondering what we are 
all doing in this room right now--and maybe you are home 
because you lost your job, or maybe you got your kids crawling 
all over your couch right now. Maybe you are trying to teach 
your first grader how to do a mute button to go to school, or 
maybe you have got a small business that you had to close down 
or that is struggling. We should be doing something else right 
now. We should not be doing this.
    We should be passing coronavirus relief, like the House 
just did, which was a significant bill that would have been a 
big help. And I think people have to know that right now, 
whether you are Democrat, Independent, or Republican. And that 
is why I started out yesterday by telling people that they need 
to vote.
    Number two, some of my colleagues throughout this hearing 
on the other side have been kind of portraying the job that the 
Judge is before us on as being some kind of ivory tower 
exercise. I think one of my friends called it--related that you 
would be dealing with the Dormant Commerce Clause.
    Well, I am sure that might be true. But we also know that 
this is the highest court in the land, that the decisions of 
this court have a real impact on people. And I appreciated, 
Judge, that you said that you did not want to be a queen. I 
actually would not mind being a queen around here, if the truth 
be known.
    [Laughter.]
    Senator Klobuchar. I would not mind doing it, as kind of a 
benevolent queen in making decisions so we could get things 
done.
    But you said you would not let your views influence you and 
the like. But the truth is the Supreme Court rulings, they rule 
people's lives. They decide if people can get married. They 
decide what schools they can go to. They decide if they could 
even have access to contraception. All of these things matter. 
So I want to make that clear.
    And the third reset here that I think we need to have is 
that this hearing is not normal. It is a sham. It is a rush to 
put in a Justice. The last time that we had a vacancy so close 
to an election was when Abraham Lincoln was President, and he 
made the wise decision to wait until after the election. The 
last time we lost a Justice so close to an election, that is 
what he did.
    Today, we are 21 days from the election. People are voting. 
Millions of people have already cast their ballots. And I go to 
the words of Senator McConnell the last time we had a situation 
in an election year. He said, ``The American people should have 
a voice in the selection of their next Supreme Court Justice. 
Therefore, this vacancy should not be filled until we have a 
new President.''
    That set the precedent that so many of you have embraced, 
or at least you did a few years ago. And that is, that in an 
election year, the people choose the President, and then the 
President nominates the Justice.
    So, why is this happening? Well, that is a good question. 
This guy, our President, he is the one that decided to plop a 
Supreme Court nomination in the middle of an election, when 
people's healthcare is on the line with a case before the Court 
on November 10th. So, let us see what he said about the Supreme 
Court.
    [Poster is displayed.]
    Senator Klobuchar. Well, one of President Trump's campaign 
promises in 2015 was that his judicial appointment will do the 
right thing on Obamacare. You can see it right here. And in 
fact, Judge, just 1 day after you were nominated--this is like 
a few weeks ago--he said also on Twitter that it would be a 
``big win'' if the Supreme Court strikes down the health law.
    So, Judge, my first question, do you think we should take 
the President at his word when he says his nominee will do the 
right thing and overturn the Affordable Care Act?
    Judge Barrett. Senator Klobuchar, I cannot really speak to 
what the President has said on Twitter. He has not said any of 
that to me. And what I can tell you, as I have told your 
colleagues earlier today, is that no one has elicited from me 
any commitment in a case or even brought up a commitment in a 
case. I am 100 percent committed to judicial independence from 
political pressure. So, whatever people's, you know, party 
platforms may be or campaign promises may be, the reason why 
judges have life tenure is to insulate them from those 
pressures.
    So, I take my oath seriously to follow the law, and, you 
know, I have not pre-committed nor would I pre-commit to decide 
a case any particular way.
    Senator Klobuchar. Okay. And I think this life tenure, this 
idea that you have--just for everyone out there--a job for 
life, makes this even more important for us to consider where 
you might be. And I know you have not said how you would rule 
on this case that is coming up right after the election where 
the President had said it would be a big win if the Supreme 
Court strikes down the law. But you have directly criticized 
Justice Roberts in an article in my own State, in one of the 
Minnesota law school's journals.
    It was in 2017. It was the same year you became a judge. 
And when Roberts writes the opinion to uphold the Affordable 
Care Act, you said he, quote, ``pushed the Affordable Care Act 
beyond its plausible meaning to save the statute.'' Is that 
correct?
    Judge Barrett. Senator Klobuchar, I just want to clarify, 
is this the Constitutional Commentary publication that you and 
I discussed because----
    Senator Klobuchar. Yes, it is.
    Judge Barrett. Okay.
    Senator Klobuchar. It is. But it is still a University of 
Minnesota law journal--yes.
    Judge Barrett. Okay. I just wanted to be sure because I had 
not published in the Minnesota Law Review.
    Senator Klobuchar. Just again, did you ask that question? 
Did you say that, that he ``pushed the Affordable Care Act 
beyond its plausible meaning to save the statute'' ?
    Judge Barrett. One thing I want to clarify, you said that I 
criticized, you know, Chief Justice Roberts, and I do not 
attack people, just ideas.
    Senator Klobuchar. Okay.
    Judge Barrett. So that was just designed to make a comment 
about his reasoning in that case, which, as I have said before, 
is consistent with the way the majority opinion characterized 
it as the less plausible reading of the statute.
    Senator Klobuchar. So you did not agree with his reasoning 
in the case that upheld the Affordable Care Act?
    Judge Barrett. What I said--and was this King v. Burwell or 
NFIB v. Sebelius?
    Senator Klobuchar. That was NFIB v. Sebelius.
    Judge Barrett. Sebelius.
    Senator Klobuchar. I will get to King v. Burwell in a 
second.
    Judge Barrett. What I said with respect to NFIB v. Sebelius 
is that the interpretation that the majority adopted construing 
the mandate to be a tax rather than a penalty was not the most 
natural reading of the statute.
    Senator Klobuchar. But it was still the reading that 
Justice Roberts got to. Now you also criticized, as you pointed 
out by bringing up King v. Burwell, another case where the 
Court ruled in favor of the health law. This was in a 2015 
National Public Radio interview.
    And you acknowledged that the result of people being able 
to keep their subsidies under the Affordable Care Act was--
would help millions of Americans. Yet you praised the dissent 
by Justice Scalia, saying the dissent had, quote, ``the better 
of the legal argument.'' Is that correct?
    Judge Barrett. I did say that, yes.
    Senator Klobuchar. Okay. So then would you have ruled the 
same way and voted with Justice Scalia?
    Judge Barrett. Well, Senator Klobuchar, one of the plus 
sides or the upsides of being an academic is that you can speak 
for yourself, that a professor professes and can opine. But it 
is very different than the judicial decision-making process. So 
it is difficult for me to say how I would have decided that 
case if I had to go through the whole process of judicial 
decision-making that I was describing this morning.
    Now, having been a judge for 3 years, I can say I 
appreciate greatly the distinctions between academic writing or 
academic speaking and judicial decision-making, such that a 
judge might look at an academic and say ``easy for you to 
say.''
    Senator Klobuchar. Mm-hmm.
    Judge Barrett. Because you are not on a multi-member court, 
you are not constrained by stare decisis. You do not have real 
parties in front of you, consulting with litigants, consulting 
with your clerk. It is just a different process----
    Senator Klobuchar. It's just, I view that one so 
interestingly because you were commenting on the public policy 
result, which you and my colleagues on the Republican side have 
said this should not be above public policy. And you said, 
okay, that is okay. But then you were really clear on your 
legal outcome in terms of your view of whose side you were on. 
You were on Scalia's side. And of course, that was the side to 
not uphold the Affordable Care Act, which would have been--
kicked millions of people off their healthcare, in effect, they 
would have lost their subsidies.
    And I just see this as interesting because of this kind of 
dichotomy they are trying to make between policy and legal. And 
my view is that legal decisions affect policy. I mean, I am 
looking at people in my State that will deal with this if the 
Affordable Care Act is struck down.
    Elijah from St. Paul, who was born with cerebral palsy. 
Because of the Affordable Care Act, he is now 16 and is a proud 
Boy Scout.
    Casey, whose brother lives in Alexandria, and his chronic 
kidney failure--and he needs a transplant. Without the ACA, 
that would be that.
    Or Burnett from the suburbs of St. Paul, whose daughter has 
multiple sclerosis, depends on benefits under the ACA.
    Liliana of Fridley, who has a 21-year-old son with autism 
and needs her children to be able to stay on her insurance 
until she is 26.
    Melanie, a senior from Duluth, who is being treated for 
ovarian cancer and needs access to the Affordable Care Act.
    So, my point is that these are real-world situations. And 
so I get that you are not saying how you would rule on these 
cases. So what does that leave us with here to try to figure 
out what kind of judge you would be?
    And I was thinking last night of when I was growing up, we 
would go up to northern Minnesota, and we did not have a cabin, 
but we had friends that did. And we would go on these walks in 
the woods with my mom. And she loved to show all the tracks on 
that path, about whether they were deer tracks--and she would 
have us figure out what they were--or elk, or maybe even a 
bear.
    And we would follow these tracks down that path. And you 
would always think is there going to be a deer around the 
corner that we are going to see? And very rarely was there one, 
but we would follow the tracks. And so when I look at your 
record, I just keep following the tracks. That is what I have 
got to do.
    And so, when I follow the tracks, this is what I see. You 
consider Justice Scalia, one of the most conservative judges in 
the history of the Supreme Court, as your mentor. You 
criticized the decision written by Justice Roberts upholding 
the Affordable Care Act. That is, to me, one big track. Even if 
you did not consider yourself criticizing him personally, you 
have criticized the reasoning.
    You then said, in another case about the Affordable Care 
Act, that you would--that you like the legal reasoning, that he 
had the better legal argument, that Justice Scalia had the 
better legal argument. You have signed your name to a public 
statement featured in an ad, a paid ad, that called for an end 
to what it called, the ad called, the ``barbaric legacy of Roe 
v. Wade,'' which ran on the anniversary of the 1973 Supreme 
Court decision.
    You disagreed with longstanding precedent on gun safety, 
which said that felons should not be able to get guns, 
something that was pretty important to me when I had my old job 
in law enforcement. This is something that Senator Durbin asked 
you about.
    You suggested that you agree with the dissent in the 
marriage equality case, Obergefell, that it was not the role of 
the Court to decide that same-sex couples had the right to be 
married. I think this was in a lecture you gave where you said 
the dissent's view was that it was not for the Court to decide. 
People could lobby in State legislatures.
    And all this takes me to one point as I follow those tracks 
down that path, and it takes me to this point where I believe--
and I think the American people have to understand--that you 
would be the polar opposite of Justice Ginsburg. She and 
Justice Scalia were friends, yes. But she never embraced his 
legal philosophy.
    So, that is what concerns me, and I want to turn to an area 
that where I think Justice Ginsburg, whose seat we are 
considering you for, was truly a hero. And that was the area of 
voting rights. And that was the area of elections.
    I think that what did the President say here? He said 
September 23, 2020, ``I think this,'' he means the election, 
``will end up in the Supreme Court, and I think it is very 
important that we have nine Justices.'' I do not think how much 
clearer we can be.
    And as I said yesterday, I do not for a minute concede that 
this election is going to end up in the Supreme Court because 
people are voting in droves, as we speak. But that is what is 
on the mind of the man who nominated you for this job.
    Then he said on September 29th of 2020, ``I think I am 
counting on them,'' he meant the Court, ``to look at the 
ballots, definitely.''
    So, I know you said earlier in questions from Senator Leahy 
that you are not going to commit to whether or not you are 
going to recuse yourself from any kind of an election case. But 
I do want to point out that as the President has said these 
things and as he has nominated you, that people are voting 
right now. They are voting, as I said, in droves.
    Do you know how many States where people are voting right 
now, Judge? I think one of my colleagues said it.
    Judge Barrett. I do not know.
    Senator Klobuchar. It is more than 40 States people are 
voting right now, as we speak. I think something like 9 million 
votes have been cast.
    Do you think it is faithful to our democratic principles to 
fill a Supreme Court vacancy this close to an election, when 
people are still voting?
    Judge Barrett. Senator Klobuchar, I think that is a 
question for the political branches.
    Senator Klobuchar. Okay. That is your right to answer in 
that way. Beyond this immediate election, I want to turn to the 
Supreme Court's critical role when it comes to the right to 
vote, this area where Justice Ginsburg was such a champion. 
Senator Durbin went over your dissent at length in Kanter v. 
Barr, where you drew a distinction between individual rights 
and civic rights. And you wrote that, historically, felons 
should be disqualified from exercising certain rights like the 
right to vote and to serve on juries.
    So, my question is this--actually, this next line where you 
said these rights belonged only to virtuous citizens. What does 
that mean?
    Judge Barrett. Senator, I would need to look at the article 
to clarify, but as I am sitting here, I do not think I said 
felons should lose voting rights. I think what I was talking 
about is that the----
    Senator Klobuchar. Could----
    Judge Barrett [continuing]. Fourteenth Amendment, yes, 
that----
    Senator Klobuchar. But it was not an article, just to be 
clear. Right? This was--this is your dissent.
    Judge Barrett. Oh, sorry, my dissent.
    Senator Klobuchar. Yes, I think it is your dissent in 
Kanter v.----
    Judge Barrett. In Kanter, yes, you are right.
    Senator Klobuchar. And it says, ``Felons could be 
disqualified from exercising certain rights, like the rights to 
vote and serve on juries.'' But apart from that Clause, you 
said, ``these rights belong only to virtuous citizens.'' That 
is what I am trying to understand, what that means.
    Judge Barrett. So the argument in the case, those who were 
challenging Heller and those who were arguing on the side of 
the Government in the Kanter case, is that the Second Amendment 
is a civic right. And that is how the Supreme Court itself 
framed the debate: as a distinction between civic rights and 
individual rights, with voting being a civic right.
    And in literature, you know, in the historical literature, 
that was--which was at play in that case, and that was----
    Senator Klobuchar. Okay, but how would you define the word 
``virtuous.'' Because it does not appear in the Constitution.
    Judge Barrett. Well, Senator, this----
    Senator Klobuchar. I am just trying to know what that means 
because we are living in a time where a lot of people are 
having their voting rights taken away from them. So what is 
virtuous?
    Judge Barrett. Okay. Well, Senator, I want to be clear that 
that is not in the opinion designed to denigrate the right to 
vote, which is fundamental. The distinction between civic and 
individual rights is one that is present in the Court's 
decisions, and it has to do with a jurisprudential view of what 
rights are.
    And the virtuous citizenry idea is a historical and 
jurisprudential one. It certainly does not mean that I think 
that anybody gets a measure of virtue on whether they are good 
or not and whether they are allowed to vote. That is not what I 
said.
    Senator Klobuchar. Okay, okay. Now let me ask you this in a 
different way because now let us go to the real world here.
    So, in Justice Ginsburg's dissent in Shelby, where a 5-4 
Court struck down a key provision of the Voting Rights Act, she 
described the right to vote as a fundamental right in our 
democratic system. And I assume you agree with this because you 
just said that--let's not get to her dissent. You agree with 
the concept that it is a fundamental right because you just 
said----
    Judge Barrett. As I just said, yes, this Court has 
repeatedly, repeatedly said it was fundamental.
    Senator Klobuchar. Okay. So, she also wrote in her dissent 
that, ``The Constitution uses the words `right to vote' in five 
separate places: the Fourteenth, Fifteenth, Nineteenth, Twenty-
Fourth, and Twenty-Sixth Amendments. Each of these 
Amendments''--this is still her talking, not me. ``Each of 
these Amendments contains the same broad empowerment of 
Congress to enact `appropriate legislation' to enforce the 
protected right. The implication is unmistakable: Under our 
constitutional structure, Congress holds the lead rein in 
making the right to vote equally real for all U.S. citizens.''
    Do you agree with Justice Ginsburg's conclusion that the 
Constitution clearly empowers Congress to protect the right to 
vote?
    Judge Barrett. Well, Senator, that would be eliciting an 
opinion from me on whether the dissent or the majority was 
right in Shelby County, and I cannot express a view on that, as 
I have said, because it would be inconsistent with the Judicial 
Rules.
    Senator Klobuchar. Okay. So here is my problem. So you go 
out of your way in the case that Dick Durbin was discussing to 
make this distinction between voting rights and gun rights, but 
now you will not say whether or not you agree with Ginsburg. 
And so my view is, just based again following those tracks on 
this case, that you are most likely with the majority. But I 
know you are not going to answer this.
    But what I do want you to know is this, and this is where 
it gets interesting because of what Justice Ginsburg predicted 
in that dissent. According to the Brennan Center, over 20 
States since that case came out that withdrew, that took away 
part of the protections from the Voting Rights Act, over 20 
States have now made more restrictive voting laws than they did 
before that case. Doesn't that suggest to you that Justice 
Ginsburg had the better of the argument when she wrote that 
``throwing out preclearance when it has worked and is 
continuing to work to stop discriminatory changes is like 
throwing away your umbrella in a rainstorm because you are not 
getting wet''?
    Do you think that that is true? And I mean, it seems to me 
that the proof is in the pudding like, basically, this 
rainstorm that she said would come has come with all these 
States, including a number of them that my colleagues over 
there represent, have enacted stricter laws. Has it happened?
    Judge Barrett. Senator Klobuchar, I want to clarify. You 
said I was answering Senator Durbin's questions about the 
Second Amendment but refusing to answer yours. And so I just 
wanted to clarify that I have written Kanter v. Barr, and so 
that is why I was talking about it. But since I did not write 
Shelby, I cannot really talk about it.
    So, anything that I have written about or talked about I 
would be happy to answer your questions.
    Senator Klobuchar. All right. But again, it just seems to 
me you went out of your way on that case, and this is a case 
that is so real for so many people right now. And that while 
you can say it is a fundamental right, the issue is that this 
case and the Voting Rights Act are so key. And let me just say 
why.
    We are talking about the entire foundation of our democracy 
here. For centuries, Americans have fought and died to protect 
the right to vote. And so what matters is not just what you say 
about its being fundamental, it is what you do. States like 
South Carolina, Texas, North Carolina, Louisiana, Tennessee 
have policies that make it harder for people to vote, and it is 
a real-world thing before the Supreme Court.
    In fact, back in May, when voters in Wisconsin were 
standing in line in the middle of a pandemic in homemade masks, 
in garbage bags in the middle of a rainstorm just to exercise 
their right to vote, 70 of them got COVID because we did not 
know enough about it back then because the President had not 
told us what he knew. And we did not know enough to protect 
those voters.
    So, it ends up at the Supreme Court. What did Justice 
Ginsburg do? When the Republican-appointed majority on the 
Court ruled that voters in Wisconsin could not have more time 
to get their ballots in during the pandemic, she called them 
out in her dissent, in her blueprint for the future, and she 
said the majority opinion boggled the mind.
    So, what boggles my mind? Well, 2 weeks ago, the U.S. 
Supreme Court reinstated the South Carolina report requirement 
that mail-in ballots must have witnessed signatures. In the 
middle of a pandemic, you have got to go and get a witness.
    In Texas, Republicans have argued that the pandemic was not 
a good enough reason to let people under age 65 vote by mail, 
despite the fact that over 42,000 Americans under 65 have died 
from COVID. And the governor is--right now is forcing that 
State to have only one ballot box per county, including in 
Harris County, where there are 4.7 million people.
    And for those of you that thought a judge took care of it a 
few days ago, he did. But then yesterday, three Trump-appointed 
judges came in and reversed that. So we are back to one ballot 
box for people to drop their ballots off in a county of 4.7 
million people.
    In Tennessee, Republicans have tried to prevent ballot drop 
boxes. I know. We had the secretary of State as one of our 
witnesses at a Rules Committee hearing, and they have argued in 
court that COVID-19 is not a valid excuse to vote by mail.
    In North Carolina, the Supreme Court struck down a core 
component of the Voting Rights Act. What happened? Well, States 
like North Carolina passed laws that were so egregious to make 
it harder to vote that the Fourth Circuit struck down their law 
and noted that it targeted African Americans with almost 
surgical precision.
    So, that is what the stakes are, and that is why not having 
Justice Ginsburg on the Court right now is so frightening to so 
many Americans out there. And that is why we are asking you 
these questions about voting.
    So, let me turn to another election question, 
gerrymandering. In 2015, Justice Ginsburg wrote the majority 
opinion in Arizona State Legislature v. Arizona Independent 
Redistricting Commission, holding that it was constitutional 
for the people of Arizona to amend the State constitution to 
establish an independent redistricting commission.
    Because of this case and Justice Ginsburg's opinion, many 
argue now that Arizona has fairer electoral maps. The decision 
was 5-4. Here is your example. And now Justice Ginsburg and 
Justice Kennedy are no longer on the Court.
    My question is this: Must State legislatures abide by their 
own State's constitution when exercising their authority under 
the Elections Clause?
    Judge Barrett. Senator Klobuchar, that would be eliciting 
an opinion from me about whether I agreed or disagreed with the 
results in that case.
    Senator Klobuchar. Okay. Is it constitutional for voters to 
amend a State constitution to establish specific processes for 
elections like the voters in Arizona did to stop 
gerrymandering?
    Judge Barrett. Again, you are asking me for a view on that 
particular case. And Justice Ginsburg herself gave the most 
famous articulation of the principle that constrains me from 
doing so, which is no hints, forecasts, or previews. So I 
cannot express a view on precedent or on how I would decide any 
question that was provoked by the application of that precedent 
to a later case.
    Senator Klobuchar. Okay. Last week, a contractor from 
outside of my State of Minnesota started recruiting poll 
watchers with Special Forces experience, mm-hmm, to protect 
polling locations in my State. This was clear voter 
intimidation.
    Similar efforts are going on around the country, solicited 
by President Trump's false claims of massive voter fraud. 
Something that, by the way, many Republican leaders--including 
Michael Steele, the former head of the Republican Party; 
including Tom Ridge; including Governor Kasich; including 
sitting Senator Romney--have made very clear is not true.
    So, as a result of his claims, people are trying to get 
poll watchers, Special Forces people, to go to the polls. Judge 
Barrett, under Federal law, is it illegal to intimidate voters 
at the polls?
    Judge Barrett. Senator Klobuchar, I cannot characterize the 
facts in a hypothetical situation, and I cannot apply the law 
to a hypothetical set of facts. I can only decide cases as they 
come to me litigated by parties on a full record, after fully 
engaging precedent, talking to colleagues, writing an opinion. 
And so I cannot answer questions like that.
    Senator Klobuchar. Okay. Well, I will make it easier: 18 
U.S.C. 594 outlaws anyone who ``intimidates, threatens, 
coerces, or attempts to intimidate, threaten, or coerce, any 
other person for the purpose of interfering with the right of 
such other person to vote.'' This is a law that has been on the 
books for decades.
    Do you think a reasonable person would feel intimidated by 
the presence of armed civilian groups at the polls?
    Judge Barrett. Senator Klobuchar, you know, that is 
eliciting--I am not sure whether to say it is eliciting a legal 
opinion from me because the reasonable person standard, as you 
know, is one common in the law or just an opinion as a citizen, 
but it is not something really that is appropriate for me to 
comment on.
    Senator Klobuchar. Okay. Here is one that I think is. 
Selection of election--Electoral College electors. You know 
that each State has laws that dictate how Electoral College 
electors are selected.
    Judge Barrett, in 1932, the Supreme Court in Smiley v. 
Holm, a case involving my State, ruled that the Minnesota State 
legislature could not change election rules unilaterally. Do 
you agree that the unanimous opinion in Smiley v. Holm, which 
has never been questioned by any other Supreme Court case, is 
settled law?
    Judge Barrett. Well, I will say two things about that. 
First of all, I was not aware of that case. So you have taught 
me something.
    Senator Klobuchar. Okay.
    Judge Barrett. But second, I cannot comment on the 
precedent, give thumbs up or thumbs down, in Justice Kagan's 
words.
    Senator Klobuchar. Okay. Well, why don't we end there with 
precedent, and I think that is a good way to end here.
    So, you wrote in your 2013 Texas Law Review article that 
you tend to agree with the view that when a Justice's best 
understanding of the Constitution conflicts with Supreme Court 
precedent or caselaw, it is, quote, ``more legitimate for her 
to follow her preferred view rather than apply the precedent.'' 
And I want to run through a few examples.
    So, Brown v. Board of Education. As we know, that holds 
that the Fourteenth Amendment prohibits States from segregating 
schools on the basis of race. So is that precedent----
    Judge Barrett. Yes.
    Senator Klobuchar [continuing]. That cannot be overruled?
    Judge Barrett. Well, that is precedent. And as I think I 
said in that same article, it is super-precedent. People 
consider it to be on that very small list of things that are so 
widely established and agreed upon by everyone----
    Senator Klobuchar. Mm-hmm.
    Judge Barrett [continuing]. Calls for its overruling simply 
do not exist.
    Senator Klobuchar. Okay. Well, you also separately 
acknowledged that in Planned Parenthood v. Casey, the Supreme 
Court's controlling opinion talked about the reliance interests 
on Roe v. Wade, which it treated in that case as super-
precedent. Is Roe a super-precedent?
    Judge Barrett. How would you define ``super-precedent''?
    Senator Klobuchar. Actually, I might have thought some day 
I would be sitting in that chair. I am not. I am up here. So I 
am asking you.
    Judge Barrett. Okay. Well, people use ``super-precedent'' 
differently.
    Senator Klobuchar. Okay.
    Judge Barrett. The way that it is used in the scholarship 
and the way that I was using it in the article that you are 
reading from was to define cases that are so well settled that 
no political actors and no people seriously push for their 
overruling. And I am answering a lot of questions about Roe, 
which I think indicates that Roe does not fall in that 
category.
    And scholars across the spectrum say that does not mean 
that Roe should be overruled. But descriptively, it does mean 
that it is not a case that everyone has accepted and does not 
call for its overruling. And I think that is----
    Senator Klobuchar. Okay. So here is what is interesting to 
me. You said that Brown is--and I know my time is running out--
is a super-precedent. That is something the Supreme Court has 
not even said, but you have said that. So if you say that, why 
won't you say that about Roe v. Wade, a case that the Court's 
controlling opinion in that Planned Parenthood v. Casey case 
has described as a super-precedent? That is what I am trying to 
figure out.
    Judge Barrett. Well, Senator, I can just give you the same 
answer that I just did. I am using a term in that article that 
is from the scholarly literature. It is actually one that was 
developed by scholars who are, you know, certainly not 
conservative scholars, who take a more progressive approach to 
the Constitution.
    And again, you know, as Richard Fallon from Harvard said, 
Roe is not a super-precedent because calls for its overruling 
have never ceased. But that does not mean that Roe should be 
overruled. It just means that it does not fall on the small 
handful of cases like Marbury v. Madison and Brown v. the Board 
that no one questions anymore.
    Senator Klobuchar. Is United States v. Virginia Military, 
is that super-precedent?
    Judge Barrett. Senator Klobuchar, if you continue to ask 
questions about super-precedents that are not on the list of 
the super-precedents that I discussed in the article that are 
well acknowledged in the constitutional law literature, every 
time you ask the question, I will have to say that I cannot 
grade it.
    Senator Klobuchar. Okay. Well, I am then left with looking 
at the tracks of your record and where it leads the American 
people. And I think it leads us to a place that is going to 
have severe repercussions for them.
    Thank you.
    Chairman Graham. Senator Sasse.
    Senator Sasse. Thank you, Mr. Chairman.
    Judge, welcome back. I mean this as good news, but it might 
not feel like it. After me, you are half done for today.
    [Laughter.]
    Senator Sasse. I am 11th of 22. Mr. Chairman, before I 
begin my questioning, I would like to ask unanimous consent to 
admit into the record a letter from Allen Guelzo, the historian 
at Princeton, who has written a letter to the Committee in 
response to some of Senator Harris' claims about the history of 
Supreme Court vacancies going back to the Civil War.
    Chairman Graham. Without objection.
    [The information appears as a submission for the record.]
    Senator Sasse. Thank you.
    Judge, you have said that the meaning of law does not 
change with time, and you have said that is very important. Can 
you unpack for us why it is so important that the meaning of 
the law does not change with time?
    Judge Barrett. Sure. Because the law stays the same until 
it is lawfully changed. And if we are talking about a law that 
has been enacted by the people's representatives, you know, or 
gone through the process of constitutional amendment or 
constitutional ratification, it must go through the lawfully 
prescribed process before it is changed.
    So, Article V in the context of the Constitution or 
bicameralism and presentment in the context of statutes, and it 
is not up to judges to short-circuit that process by updating 
the law. That is your job.
    Senator Sasse. But laws clearly are written in a context, 
and then the things, the circumstances to which those laws have 
applied would change. Does the Fourth Amendment have nothing to 
say about cell phones? Unreasonable search and seizure was 
obviously not written in a time when they had imagined mobile 
technological devices that addicted our kids. Does the Fourth 
Amendment have nothing to say about cell phones?
    Judge Barrett. No. The Fourth Amendment--so the 
Constitution, one reason why it is the longest-lasting written 
constitution in the world is because it is written at a level 
of generality that is specific enough to protect rights, but 
general enough to be lasting. So that, you know, when you are 
talking about the constable banging at your door, you know, in 
1791 as a search or seizure, now we can apply it, as the Court 
did in Carpenter v. United States, to cell phones.
    So, the Fourth Amendment is a principle. You know, it 
protects against unreasonable searches and seizures. But it 
does not catalogue the instances in which an unreasonable 
search or seizure could take place. So you take that principle, 
and then you apply it to modern technology, like cell phones.
    Or what if technological advances enable someone with 
Superman X-ray vision to simply see in your house? So there is 
no need to knock on the door and go in. Well, I think that 
could still be analyzed under the Fourth Amendment.
    Senator Sasse. So, I think this is a useful place to 
explain to the American people again what originalism is and 
why it is a mistake to view it as a Republican position. I 
think that originalism is a part of a jurisprudential debate. 
It is not a part of a policy continuum between Republicans and 
Democrats. I think it is something that is useful for everybody 
who believes that three branches of Government have two that 
are political and one that is not.
    So, maybe it is useful to just kind of back up and say, 
when you define yourself as an originalist, what does that 
mean? And then how is it going to relate to that distinction 
between the principles that are timeless, but the applications 
that are clearly going to change by circumstance?
    Judge Barrett. Right. So originalism means that you treat 
the Constitution as law because it commits these texts to 
writing, and in interpreting that law, you interpret it in 
accord with the meaning that people would have understood it to 
have at the time that it was ratified.
    And the reason that you do that is because otherwise--well, 
as I said, the law stays the same until it is lawfully changed. 
Otherwise, judges would be in the constitutional convention 
business of updating the law rather than allowing the people to 
take control of that.
    Now, in the case of the Constitution, as I said with the 
Fourth Amendment, many of its principles are more general. 
Unreasonable searches and seizures, you know, free speech, 
those are things that have to be identified or fleshed out or 
applied over time. So the fact that there wasn't the internet 
or computers or blogs in 1791 does not mean that the First 
Amendment's Free Speech Clause could not apply to those things 
now.
    It enshrines a principle, and we understand the principle 
as it was at the time. But then it is capable of being applied 
to new circumstances.
    Senator Sasse. So when you define yourself as an 
originalist, what are the other schools of thought that are 
adjacent to it? And how do you think about the debates among 
those with other people that are now with you on the Seventh 
Circuit, for instance?
    Judge Barrett. Sure. Well, Senator Sasse, I think one thing 
that is worth pointing out is that in the academy, in any 
event, where I have spent a large portion of my career, 
originalism is not necessarily a conservative idea. There is a 
whole school of thought, and so originalists are now a very 
diverse lot.
    And there is a school of originalism that is more of a 
progressive originalism and is very committed to keeping the 
Constitution's meaning, just interpreting text the way all 
originalists do, to say that it was--has the meaning that it 
had at the time that it was ratified. But they tend to read it 
at a higher level of generality.
    So, all originalists do not necessarily agree. And in fact, 
there is an advocacy group called the Constitutional--
Constitution Accountability Center, which has routinely filed 
briefs in the Supreme Court, that calls itself--you know, it 
writes briefs in support of originalism, but taking it from a 
more progressive standpoint.
    So, I do not think it is--I think probably people think, 
oh, it is only conservatives who are originalists, but 
actually, it is a more widely accepted view than that.
    I think that if you think about different strains of 
approaching constitutional text, originalism is one. All judges 
and Justices take account of history and the original meaning. 
It is just that some weight it differently. Whereas 
originalists would give it dispositive weight when it is 
discernible, other approaches to constitutional interpretation 
may take a more pragmatic view and say in some instances, well, 
that may have been the historical meaning, but that is an 
uncomfortable fit for current circumstances, so we will tweak 
it a little bit to adjust it to fit these circumstances, that 
situation.
    Sometimes it is called ``living constitutionalism,'' that 
the Constitution can evolve and change over time. Sometimes it 
is called like a more pragmatic constitutionalism.
    Senator Sasse. So, I want to make sure we establish this 
fact clearly together because one of the things that I think is 
really unhelpful for the American people when they see hearings 
like this over the last 20 years is there is an assumption that 
those of us who have advocated for you over the course of the 
last 3 years must be doing it because we know something about 
your policy views, and we have seen the ``Beautiful Mind 
conspiracy theory'' charts, for instance, that this is about 
specific outcomes that people want.
    What I want is to have a judge who does not want to take 
away the job of a legislature that is accountable to the 
people. What I want is to be sure that the two political 
branches that are accountable to the people because they can 
hire and fire us are the places where policy decisions are 
made.
    So, what you are saying is in the legal academy, there are 
people who agree with you on originalism as a broad 
philosophical school and yet would come out very different 
places on the outcomes of particular policy decisions?
    Judge Barrett. That is what I am saying.
    Senator Sasse. So, on the Notre Dame law faculty, when you 
were up for the vacancy on the Seventh Circuit 3 years ago, the 
Notre Dame law faculty, as I understand, the letter that we got 
from them here had people unanimously recommend you across a 
faculty, and I would assume there is a pretty wide view of 
policy on the Notre Dame law faculty?
    Judge Barrett. There is.
    Senator Sasse. And so people can affirm that you know what 
the job of a judge is. You have the judicial temperament and 
modesty and humility about the calling, and they are 
comfortable with you, even though they do not think they might 
agree with every policy view that you have before you put on 
your robe.
    Judge Barrett. I hope that is what people think of me 
because that is what I have always striven to do. And certainly 
in my time as a judge, my job, my boss is the rule of law, not 
imposing my policy preferences.
    Senator Sasse. So can you tell us what the black robe is 
about? Why do judges in our system wear robes?
    Judge Barrett. Well, judges in our system wear black robes, 
and they started wearing black robes actually because Chief 
Justice John Marshall started the practice. In the beginning, 
Justices used to wear colorful robes that identified them with 
the schools that they graduated from.
    And John Marshall at his investiture decided to wear--
decided to wear a simple black robe. And pretty soon, the other 
Justices followed suit, and now all judges do it. And I think 
the black robe shows that justice is blind. We all dress the 
same. And I think it shows that once we put it on, we are 
standing united symbolically, speaking in the name of the law, 
not in speaking for ourselves as individuals.
    Senator Sasse. Thank you. You, in your questioning from 
Chairman Graham this morning, talked a little bit about the 
process of judicial decision-making, and you started with four 
steps and then added a fifth and then, I think, added a sixth.
    [Laughter.]
    Senator Sasse. Because it turns out, being a reactive 
branch is really reactive. Can you explain what it means that 
the judiciary, the Article III branch, is reactive?
    Judge Barrett. So, Article III of the Constitution says 
that courts can hear cases or controversies. So, a judge cannot 
walk in one day and say, I feel like, you know, visiting the 
question of healthcare and telling people what I think. We 
cannot even think about the law or how it would apply until 
litigants bring a real live case with real live parties and a 
real live dispute before us.
    And the material that we have to decide that dispute is 
what comes from you. It is the statutes that you pass. We do 
not get to come up with the policies and see our wishes become 
part of the United States Code. So we react to the litigants 
who bring cases before us, and we apply the laws that you make.
    Senator Sasse. And what are the steps inside those Article 
III courts before it would ever get to a situation where the 
Supreme Court hears cases? What is unique about the Supreme 
Court?
    Judge Barrett. So, the Supreme Court obviously sits atop 
the Federal hierarchy of the judiciary, and the Supreme Court--
so my court now, the Seventh Circuit, every time someone loses 
in the district courts, which are the trial courts, they can 
appeal. And we take every single appeal that comes.
    The Supreme Court works differently. The Supreme Court 
takes cases when it needs to--most frequently the reason it 
takes them is to resolve a division among the courts of appeal 
or the State supreme courts. The Supreme Court gets about 8,000 
petitions a year, and they hear about 80 cases a year. So, it 
is discretionary, what cases to take.
    Senator Sasse. So it is reactive. It is a reactive branch, 
and it is after a process where there is a statute, it has been 
challenged, there are active cases. And then it works its way 
up to the Court.
    But when the Justices decline to take a case, what are they 
saying? They are saying you do not matter, and you do not have 
a right to appeal? What are they saying to the litigants in a 
case when they decline to grant cert?
    Judge Barrett. They are not expressing any view on the 
merits. They are simply saying this is not a case that we are 
going to put on our docket for certiorari because the Court has 
obviously limited time and limited resources. And so it selects 
the cases where it is resolving a division, for example, in the 
courts or some other question on which--of national importance 
on which the Supreme Court needs to step in.
    Senator Sasse. There has been a lot of discussion in some 
of the questioning earlier this morning implicitly about 
standing. Can you just explain what standing is so that the 
American people understand it?
    Judge Barrett. Yes. So this dovetails with your question 
about the judiciary being a reactive branch. So as I said, the 
Constitution gives the courts, the Federal courts, the power 
only to decide actual live cases and controversies. So not only 
can we wake up one morning and volunteer our views, because the 
Constitution prohibits us from giving what are called 
``advisory opinions.'' We cannot just dispense advice or give 
our views on the law, which is one reason why I am not able to 
answer some of the questions being asked today.
    A litigant cannot get us to give an advisory opinion or 
elicit a view unless the litigant actually has a real case. So 
you, Senator Sasse, could not walk into court and file a 
lawsuit and just ask me to give my advice on whether some 
particular statute was constitutional. I can only decide that 
question if there is an actual dispute about it.
    Senator Sasse. You mentioned ``living constitutionalism'' a 
little bit ago. I think Chief Justice Warren had a much broader 
view of standing than some of the folks that have influenced 
your thinking and writing. Can you walk us through a little bit 
of the history of the Court's view of standing over the last 
few decades?
    Judge Barrett. So, are you thinking about how broadly, like 
when a plaintiff has suffered an injury or that is a concrete 
injury?
    Senator Sasse. Right.
    Judge Barrett. So--so, Senator Sasse, if you came into 
court and you were objecting to a particular statute, and you 
did not like a particular statute, you would have to actually 
suffer what is called a ``concrete injury.''
    So, the Supreme Court, a few terms ago, in a case called 
Spokeo, said that a plaintiff lacks a concrete injury if the 
harm is not--let us see, to use words the American people might 
understand--palpable. Like, it cannot just be a procedural 
injury or something that did not actually have real consequence 
or real effect on the litigant.
    I think that the dispute about standing, you know, or the 
difficult thing in deciding questions of standing, and the 
Spokeo opinion laid this out, is deciding when an injury is 
concrete and courts can hear it, or when that injury is more 
abstract and designed to elicit an advisory opinion from the 
court.
    Senator Sasse. You said in your opening comments yesterday 
that it is not the responsibility of the courts to right every 
wrong in society. I want to ask you a question about it. But 
first, can you just remind us what your view is there? Why did 
you say that?
    Judge Barrett. So, I think probably what I was getting at 
there--though I would have to say, Senator Sasse, so much has 
happened since I gave the opening statement yesterday. Courts, 
because they are reactive, cannot reach out to right wrongs 
that do not come to them in a case--in the situation of a case 
or controversy.
    And then even if they come to courts in the situation of a 
case or controversy that a court can legitimately decide, we 
are not free to just resolve it like Solomon in the way that we 
think is wisest. So we are only free to address wrongs and 
decide cases in accordance with democratically elected law.
    So, the policymaking is yours to do, and it is only if you 
have enacted policies that enable us to right a wrong that we 
can do so.
    Senator Sasse. So you still said, though, that you view it 
as some of your responsibility on the Seventh Circuit to write 
every opinion, every judgment from the standpoint of the losing 
party. Explain to us why you take that perspective of wanting 
the losing party to understand the law and the argument.
    Judge Barrett. So I just write the opinion as I would write 
the opinion. And then after I write the opinion, I read it from 
the perspective of the losing party because I want to make sure 
that, like I said earlier, it is a check on me to make sure 
that if I try to put my emotions or my preferences on the other 
side, that I can see that it has been a balance just strictly 
driven by legal analysis.
    I also want to make sure that the language in it is very 
respectful to the party who will ultimately be disappointed. I 
do not know, is that responsive to----
    Senator Sasse. Yes. Because why I want to ask this is 
because I am in my fifth year here, or a little over 5 years, 
and I am on my fourth year on this Committee. And pretty much, 
you are the third Supreme Court nominee to come before the 
Committee during that time, and we have had dozens of appellate 
court nominees.
    And I have been amazed how many times the argument is, 
American people be really, really scared. The person sitting 
before us obviously hates people and wants them--wants sick 
people to die and not have healthcare coverage. That is sort of 
an argument that is routine around here. It has been focus 
grouped, obviously, as a good way to demonize nominees to the 
court and hopefully drive outcomes in elections, I guess.
    I do not understand it. I think it is terribly destructive 
of the civic health. And yet I think about it from the 
standpoint of thoughtful, well-meaning Nebraska Democrats who 
hear that, and they know I have a different policy view than 
they might on getting the portability in healthcare so people 
can keep their health insurance across job and geographic 
change because that is actually what is driving that 
uninsurance in America over the last few decades.
    It is not primarily health status. It is not primarily pre-
existing conditions or socioeconomics. The number-one driver of 
uninsurance in American public life is that we change jobs a 
lot more frequently than we used to. And so I have a different 
policy solution of how we would get to portability in 
healthcare than a lot of my Democratic colleagues, but those 
are policy disputes about a modern economy where people move 
around a lot, both geographically and in terms of employer-
sponsored health insurance relationships.
    Those contracts are not really the things that a nominee 
coming before the Court is supposed to opine on because I do 
not have any idea what your views are on healthcare, but I know 
that it is not really the job of a judge to reflect on those 
things. And so I want to be sure that folks who hear this 
hearing and at the end of the process, they can have trust that 
you are not a person who really wishes secretly you could be 
the queen of all healthcare and decide all these issues.
    And so when you write your opinion, it seems to me that one 
of the really humble things you are doing is you are saying in 
every case that has come before me on the Seventh Circuit, I 
want to write this opinion from the standpoint of the losing 
party to understand what was the question before the court 
today, and how did the court rule on that specific narrow 
thing?
    Because ultimately I think you would believe, given your 
jurisprudential tradition and given your view of judicial 
modesty and humility and your Scalia mentorship, my guess is 
there are times when you rule in cases where you go home at 
night and you take off your robe and you think the outcome is 
not the outcome you wish had been the case, but it was not your 
job to ultimately decide all policy in American life. It was to 
decide the specific question before you.
    And it seems to me the humble, empathetic way that you 
write those opinions is really important. It is also--it should 
be in the interest of public trust, and American people who 
might listen to a lot of the demagoguery that implies that 
really you are just secretly a policy actor, it should be 
pretty comforting to them that except for probably Justice 
Breyer, you have written more than, I think, than anybody who 
is currently on the Court.
    So, people can actually know your jurisprudential views and 
how you are going to approach cases when you get on the Court 
because you have written a ton. There is a reason why the Notre 
Dame faculty, regardless of their policy positions, wrote a 
letter to this Committee universally recommending you. There is 
a reason why year after year on the Notre Dame law faculty you 
were Professor of the Year, because students, regardless of 
their policy views, thought you were really good at explaining 
what the job of a judge is and what the purpose of Article III 
in our constitutional system is.
    And as somebody who worries a lot about institutional trust 
and a lot of the attacks that we see on the Court, a lot of the 
attempts that we see in this language about potentially court 
packing, if we would go to 11 or 13 or 15 or, you know, a 
Venezuelan-style 47-person court over the next couple of 
election cycles, that undermining, that delegitimizing of the 
courts should have as its antidote the fact that you have 
written a ton about what you think the job of a judge is, and 
people can actually understand it. And I would hope that that 
is some of what this hearing would try to unpack.
    I am nearly out of time, and I think the Chairman is going 
to take away my slot. So I want to ask one final thing. Tell us 
about the Scalia-Ginsburg friendship and the impact that it 
made on you.
    Judge Barrett. So Justice Scalia famously, when the vacancy 
came up, I think it was Justice White's seat that Justice 
Ginsburg filled. But when the vacancy came open during the 
Clinton administration, Justice Scalia recommended her, even 
though they had been together on the D.C. Circuit, and that is 
where they got to know each other. And he knew that she had a 
different jurisprudential approach.
    And you know, a lot has been said in the weeks since 
Justice Ginsburg died about that friendship because I think it 
speaks so well to both of their characters that despite the 
fact that they had such great differences and they could fight 
with the pen, they--when they were socializing, when they were 
outside of the opinion-writing world, they had respect and 
affection for one another.
    And that is how I have tried to live my life with, you 
know, I have friends who disagree with me vehemently about all 
kinds of things. But I think that it is dehumanizing if we 
reduce people to the political or policy differences that we 
might have with one another.
    Senator Sasse. Thank you. And congrats on being half done.
    Chairman Graham. Well, for the record, I really enjoy 
listening to you, Senator Sasse. I think you make a lot of 
sense, and he explained the system very well. You do not have 
to be a lawyer to understand what the law is all about, and I 
think you get it very much so.
    Senator Coons.
    Senator Coons. Thank you, Mr. Chairman.
    Thank you, Judge Barrett. To you and your family, welcome. 
I guess I am on the downside if you are halfway through.
    [Laughter.]
    Senator Coons. If I might just, at my opening, Mr. 
Chairman, I will submit two letters for the record, if I might, 
one from the SEIU on behalf of the 2 million members of the 
Service Employees International Union, and one on behalf of a 
national constellation of disability rights groups.
    Chairman Graham. Without objection.
    [The information appears as submissions for the record.]
    Senator Coons. So, Judge Barrett, if I might.
    [Poster is displayed.]
    Senator Coons. The calendar behind me makes clear something 
about the context that we are in, because I think folks 
watching this at home, despite the wonderful efforts that a 
number of my colleagues have made to make this accessible, may 
have difficulty understanding exactly why we are here and why 
under these circumstances and why we keep bringing up the 
Affordable Care Act. So let me try and walk that through.
    These aren't normal times, as you well know. Most of us are 
wearing masks. There are a number of Members of this Committee 
and the Senate who have been infected by COVID, as our 
President has, and that has resulted in the Senate being closed 
this week and our not being able to proceed. We are in the 
middle of a pandemic, and we are just 3 weeks from an election, 
a Presidential election in which folks are voting in more than 
40 States. Millions of votes have already been cast. And just a 
week after that election the Supreme Court is going to hear a 
case that could take away healthcare protections for more than 
half of all Americans. So this is not an abstract academic 
argument. It is one that will have real-life consequences.
    Destroying the essential protections of the Affordable Care 
Act, which was enacted just more than a decade ago, would have 
a real impact on a majority of all Americans. It prevents 
insurance companies from discriminating against the more than 
100 million Americans with pre-existing conditions, like 
diabetes or heart disease. It dramatically expanded Medicaid, 
and it provides coverage for kids on their parents' insurance 
up to the age of 26--I should say young adults.
    And perhaps most importantly, since a lot of what we have 
been talking about is the legacy of Justice Ginsburg and her 
lifelong commitment to gender equity, it also prevents 
insurance companies, the Affordable Care Act does, from 
discriminating against women just for being women. It may be 
hard to imagine now, but more than a decade ago, before the 
ACA, pregnancy was treated as a pre-existing condition, and 
women were routinely charged more than men just because 
insurance companies could.
    So, President Trump, he said over and over again that he is 
determined to repeal the Affordable Care Act, that he is 
determined to overthrow it. And there are two things all of us 
are waiting for. One is his detailed health plan, the other is 
his taxes, and I don't expect either one of them in the next 3 
weeks.
    The President tried to do it here in Congress--in fact, I 
think by one count my colleagues have voted 70 times to 
overturn the ACA--and many in this Chamber, many Members of 
this Committee, Members like Senators Cornyn and Lee and 
others, have filed amicus briefs before the Supreme Court, 
asking for the law to be struck down.
    So now, on the eve of the election, I believe President 
Trump is making a last-gasp attempt to get the Supreme Court to 
do it for him. He can't do it through the democratic process. 
He can't do it administratively. He is going to try and do it 
with one more challenge. And as you well know, Judge, it was 
upheld 8 years ago in a 5-to-4 decision, where Chief Justice 
Roberts wrote a critical, decisive piece of the majority 
opinion. But Justice Scalia, for whom you clerked, your mentor, 
whose broad philosophy you embrace, dissented. He thought it 
was unconstitutional and voted to strike down the entirety of 
the law.
    You wrote an article in Constitutional Commentary in 2017, 
in which you were quite critical of Chief Justice Roberts' 
decision. So I want to ask you about that article, not as a 
matter of debating abstract academic principles but because I 
believe the outcome in this case, a week after the election, 
may hang in the balance.
    You wrote in that article, and I quote, ``In NFIB v. 
Sebelius, the case that upheld the ACA against a constitutional 
challenge, Chief Justice Roberts pushed the Affordable Care Act 
beyond its plausible meaning to save the statute.'' I think 
those are fighting words, as an originalist and as a 
textualist. You were referring to Chief Justice Roberts' ruling 
that the individual mandate in the ACA is constitutional under 
Congress' taxing powers, a ruling essential to upholding the 
law and protecting the healthcare of a majority of Americans.
    So just, if you could, do you think the Chief Justice's 
ruling upholding the ACA was implausible and unsound?
    Judge Barrett. Well, Senator Coons, what I said in that 
article, which was a book review of someone else's book, was 
that the statutory interpretation, as I said earlier, as Chief 
Justice Roberts on opinion said, was the less natural reading 
of the mandate, construing it as attacks rather than a penalty, 
that the statutory interpretation seems, as you said, stretched 
beyond its plausible meaning. But NFIB v. Sebelius turned on 
the constitutional question that was, the statutory 
interpretation was the threshold question. And the 
constitutional question was not something that I ever opined 
on.
    And the case next week, or the case that is coming down the 
pike in a few weeks, California v. Texas, I wouldn't say they 
are fighting words from the article that you read from me, 
because the California v. Texas case involves a very different 
issue, this issue of severability, and for those to be fighting 
words I think you would have to assume that my, you know, 
critique of the reasoning reflects a hostility to the Act that 
would cause me to approach a case involving the ACA with 
hostility and looking for a way to take it down, to deprive 
people of their coverage under the ACA because I didn't like 
it.
    But I can promise you that that is not my view. It is not 
my approach to the law. I have no hostility to the ACA or any 
other law, and that I will faithfully apply the law, and 
nothing that I have said with respect to the ACA in print, in 
my law review articles, actually bears on the severability 
question. So it is not indicative of how I might approach that 
question.
    Senator Coons. Let me go back to what I perhaps too 
jokingly referred to as fighting words. You are both 
textualists. You are both from the same general school of 
constitutional methodology. Correct?
    Judge Barrett. You mean Justice Scalia and me?
    Senator Coons. And Chief Justice Roberts.
    Judge Barrett. I am not actually sure that Chief Justice 
Roberts has ever identified himself as a textualist.
    Senator Coons. So, to that point, in this article 3 years 
ago, you chastised Chief Justice Roberts for not being a 
textualist. You said he has not proven himself to be a 
textualist and has been willing to depart from ostensibly clear 
text. And so you said in this article, and I am quoting you, 
``It is illegitimate for the Court to distort either the 
Constitution or a statute to achieve what it deems a preferable 
result.''
    So, this was the sort of outcomes-oriented judicial 
crafting that has often been sharply criticized by your mentor, 
Justice Scalia, when criticizing the sort of living 
constitutionalists, and as I read this you are saying to Chief 
Justice Roberts, you are no textualist, you have overreached, 
you have delivered an implausible conclusion, and frankly I 
disagree with your upholding the constitutionality of this 
statute.
    That seems to me, again, as a textualist here, a plain 
reading of your own writing.
    Judge Barrett. Well, Senator Coons, I want to make very, 
very clear, I think maybe this is--came up with Senator 
Klobuchar, that I was not attacking or, you know, chastising 
Chief Justice Roberts at all, for whom I have the greatest 
respect. I think this passage that you are talking about in 
this book review in Constitutional Commentary was maybe a 
couple of paragraphs, maybe even one paragraph at the end, 
because it was a comment on Randy Barnett's book, and a lot of 
his book dealt with the NFIB v. Sebelius as an example. So I 
was responding to that.
    And the sentence that you read me about, it is illegitimate 
for a court to twist language in pursuit of a policy goal, that 
is what I think. That is what I was telling Senator Sasse. I 
mean, I don't think it is the job of courts to pursue policy 
goals that the text that you enact doesn't support.
    Senator Coons. So to be clear, you are specifically 
accusing the Chief Justice--or you are ``chastising'' might be 
the better word, the Chief Justice--of distorting the statute 
and of upholding it when it should have been struck down.
    Judge Barrett. No. I am not--I was not. I said I was not 
chastising. All I was doing was expressing some--well, I mean, 
and as I have said several times, it is how the Chief Justice 
himself characterized it. It is not the most natural reading of 
that language. And all I was doing was----
    Senator Coons. Well, if I might, Your Honor, I don't think 
the Chief Justice would agree with that characterization. He 
didn't describe his own opinion as not plausible.
    Judge Barrett. He said ``less natural,'' and I thought it 
was implausible.
    Senator Coons. But not unsound.
    Judge Barrett. So, Senator Coons, I certainly would not and 
did not criticize or chastise the Chief Justice or impugn his 
integrity. It is true that Chief Justice Roberts and Justice 
Scalia took different approaches to the text in the Affordable 
Care Act case, which is something that is widely acknowledged.
    Senator Coons. I am simply trying to make clear that I 
think your writing here, in 2017, in Constitutional Commentary, 
yes, the majority of it is a book review about a book that 
centrally talks about NFIB v. Sebelius and methodological 
questions. But near the end you are, I think, unmistakably 
clear in saying, I disagree with the Chief Justice's ruling 
upholding the Affordable Care Act, and I deem it implausible 
and unsound.
    Judge Barrett. Senator, as an academic I did express a 
critique, and I--you know, you have quoted the language. You 
have pulled out those three sentences at the end. I guess I am 
a little uncertain what it indicates, because as I have said, I 
have no hostility to the ACA, and if a case came up before me 
presenting a different question of the ACA I would approach it 
with no bias or hostility.
    I also have said, earlier points in this hearing, that the 
exercise of being a commentator, an academic, is much different 
than the enterprise of judging, and I didn't have to sit in 
Chief Justice Roberts' seat or Justice Scalia's seat when NFIB 
v. Sebelius was decided.
    Senator Coons. But you will--if we follow the timeline laid 
out by my colleagues, you will sit in former Justice Ginsburg's 
seat, and you will sit as a member of the Court deciding a case 
that is very similar to the previous one, in which the central 
issue before the Court, believe it or not, somehow, will be the 
constitutionality of the mandate that is, in some ways, been 
the linchpin of its being upheld previously. In NFIB v. 
Sebelius, that was the sort of key point, was that at the end 
of the day there were five Justices who, for different reasons, 
concluded that they could uphold it, in the case of the Chief 
Justice, as a legitimate exercise of the taxing power.
    You wrote--and this is the next sentence--that Chief 
Justice Roberts, if he had treated the payment owed under the 
mandate as the statute did, as a penalty, he would have had to 
invalidate it.
    So, I think you are unmistakably criticizing this decision 
to uphold the Affordable Care Act in a case that will be before 
you as a newly seated member of the Supreme Court, if the 
Majority continues with this race toward your confirmation. It 
is the nerve center of the case. The entire future of the 
Affordable Care Act, I think, hinges on this question of 
whether or not you share a view with the four who were in the 
minority at the time, that this is something that cannot be 
upheld under any plausible reading of the statute.
    Let me move on, if I might, Judge Barrett. You are not the 
only person who has criticized Chief Justice Roberts for his 
decision to uphold the ACA. President Trump criticized him for 
it, sharply and repeatedly. Soon after the NFIB decision first 
came out in 2012, he tweeted that Justice Roberts ``turned on 
his principles with irrational reasoning in order to get loving 
press.'' And then later, ``Congratulations to John Roberts for 
making Americans hate the Supreme Court because of his BS.''
    A few years later, while running for President, then-
candidate Trump said on Twitter, and I believe my colleague put 
this up earlier, ``If I win the Presidency, my judicial 
appointments will do the right thing, unlike Bush's appointee, 
John Roberts, on Obamacare.'' And as recently as just 2 months 
ago, Vice President Pence described Chief Justice Roberts as, 
and I am quoting, ``a disappointment to conservatives because 
of the Obamacare decision.''
    In upholding the ACA, the Chief Justice was the one Justice 
appointed by a Republican President who went against the 
political wishes of the party that appointed him. Why did you 
choose to single him out for criticism in that Constitutional 
Commentary article?
    Judge Barrett. Well, Senator Coons, I was writing about the 
majority opinion, and Chief Justice Roberts was the author of 
the opinion, so I was simply discussing what the five-Justice 
majority adopted as its reasoning. And I would like to 
emphasize, again, that I was not attacking Chief Justice 
Roberts or impugning his character or anything of that sort. It 
was an academic critique. And I want to emphasize, you know, 
just given this line of questions that you are asking, that, 
you know, I am standing before the Committee today saying that 
I have the integrity to act consistently with my oath and apply 
the law as the law, to approach the ACA and every other statute 
without bias. And I have not made any commitments or deals or 
anything like that. I am not here on a mission to destroy the 
Affordable Care Act. I am just here to apply the law and adhere 
to the rule of law.
    Senator Coons. Look, I think it is important that folks 
watching understand that I believe your views are sincere and 
earnestly held, and I am not trying to suggest that there was 
some secret deal between you and President Trump. When you told 
me that when we spoke a week ago, ``I have had no conversations 
about these cases with the President or his legal team,'' I 
believed you. I think you are a person who earnestly means 
that, and I do think it is important that you keep repeating 
that.
    But we cannot ignore the larger context that sits outside 
your nomination and this rushed process. I am sure you have no 
ill will toward the Chief Justice and meant no disrespect to 
him as an individual. We have talked repeatedly about the 
friendship between Justice Scalia and Justice Ginsburg. You 
know, I was long inspired by the friendship between Senator 
Biden and Senator McCain, and they fought hammer and tongs, 
tooth and nail, disagreed with each other on foreign policy, 
day in and day out, but then could still also spend time 
together with each other's families and respect each other 
afterwards. And to the point my colleague from Nebraska has 
made about civics versus politics, it is important for us to 
try and sustain these institutions that hold us together.
    Judge Barrett. And, you and Senator Flake, I think, are 
another good example of that.
    Senator Coons. Indeed. As you well know, we came to Notre 
Dame Law School just over a year ago to talk about working 
together even across significant differences.
    But the broader context that Senator Whitehouse went 
through in detail was, as you are expressing opinions in an 
academic journal, there is literally an army of lobbyists and 
lawyers and people, donors and activists, who are funneling new 
judges into our courts. And I have sat here for 4 years and 
watched a whole procession of judges, where, without going on 
about this too much, you know, a dozen have been deemed 
unqualified to serve. This is not a comment on you. But the 
speed and the process and the disrespect for some of the 
critical traditions of this body, in terms of the blue slip and 
who gets nominated and why, has made it harder and harder to 
see the independence of the judicial branch.
    And in this piece that you wrote in 2017, you made, I 
think, your position with regards to the Chief Justice and his 
opinion, clear.
    Let me, if I could, put up another poster that may make 
this a little sharper in a way that is the political branches, 
not the judicial branch.
    [Poster is displayed.]
    Senator Coons. The Supreme Court is going to hear 
arguments, as I have said, in this case a week after the 
election, and most Americans are probably surprised to even 
hear about it. When I talked to a constituent, Carrie, who has 
a pre-existing condition, she was surprised this was even in 
front of the Court. She said, ``I thought that was settled.'' 
Carrie owns a small business. She has a daughter she is 
raising, and before the ACA, she had to spend $800 a month for 
insurance that she described as junk. It left her afraid of 
even going to the doctor's office or needing drugs.
    And because of the ACA, she has been able to get better 
quality insurance than she can afford, and she has got both 
type 2 diabetes and high blood pressure. But the ACA guarantees 
she can't be denied insurance or made to pay higher premiums 
either because of her gender or because of these pre-existing 
conditions.
    She expressed to me astonishment. Many of us are engaged 
and interested in this because we care about the Constitution. 
We care about constitutional law and the ways in which it 
impacts a majority of all Americans, frankly all Americans. 
Help me explain to her, how is it that the Affordable Care Act, 
settled 8 years ago, is back in front of the Supreme Court?
    Judge Barrett. Well, Senator, I spent some time with 
Senator Sasse talking about how a case winds its way up, and it 
is because litigants chose to challenge the law again. And, you 
know, it went through the district court and the Fifth Circuit 
and now the Supreme Court has granted certiorari on it and is 
answering the question. But as to the broader question, which I 
think is a political one which is why are people fighting the 
Affordable Care Act, you have to ask the litigants. You know, I 
don't know why they are fighting the Affordable Care Act.
    Senator Coons. Well, two things on that. Yes, there are no 
advisory opinions, as you said in your exchange with Senator 
Sasse, and you have to have standing. The courts are reactive. 
But as Senator Whitehouse laid out there is a whole network of 
groups that fund and develop and present test cases, over and 
over and over. And this is an issue that will be before the 
Court just a week after the election, that is really not 
distinguishable from NFIB v. Sebelius. I mean, they are 
essentially about the constitutionality of the mandate, whether 
it is a legitimate exercise of the taxing power. You don't get 
to the question of severability if you haven't already 
determined the question of constitutionality.
    Judge Barrett. But I think that the question of 
severability, even if the now-zeroed-out mandate provision is a 
penalty, it doesn't affect the Act at all if that provision can 
be severed out and the whole rest of the Act would stand. And 
so I actually think that severability is sort of a--you know, I 
think severability is one of the most important issues in the 
case. I don't think the question of characterizing as a tax 
versus a penalty--you know, NFIB v. Sebelius also was 
interpreting a different provision. It was one that wasn't 
zeroed out that actually had money attached to it.
    Senator Coons. But if I could, this is the filing of the 
Department of Justice. In the Supreme Court, as you well know, 
the Justice Department is supposed to defend the 
constitutionality of Federal laws if any reasonable defense can 
be made. And the Trump Justice Department has sided with those 
advocates who are trying, once again, to strike the law down 
now in the courts when they couldn't accomplish that here. In 
fact, I would argue that they are denying the will of the 
voters that clearly, in 2018, in deciding control of the House 
on healthcare, want this to stay. And the administration is 
arguing that this now toothless mandate, which imposes no 
payment on anyone, is unconstitutional, and they are arguing 
the entire Act must be struck down as a result.
    I frankly think the DOJ is embarrassed by this brief. They 
rarely even talk about it. But it is in black and white, in the 
quotes over my shoulder, that the mandate is unconstitutional 
and must go, and so the parts of the law that prevent insurance 
companies from discriminating against people with pre-existing 
conditions, that prevent discrimination against women, all of 
it must fall as a result.
    It seems to me that Americans who are watching deserve to 
understand that this is somehow back up in front of the Court, 
the posture the administration is taking, the ways in which it 
really does follow some of the contours of NFIB v. Sebelius, 
and the ways in which, bluntly, while I know you won't talk 
about this pending case, what you said in that 2017 article, 
what you wrote, is highly relevant.
    Just as a preliminary point, the vote to uphold the ACA in 
NFIB v. Sebelius was 5-to-4. Correct?
    Judge Barrett. Yes.
    Senator Coons. And Justice Ginsburg was in the majority and 
Justice Scalia in the minority.
    Judge Barrett. Yes.
    Senator Coons. So if you were to replace Justice Ginsburg 
with someone who followed precisely Justice Scalia's analysis 
on the linchpin question of constitutionality, one could expect 
it would be overturned.
    Judge Barrett. No, Senator Coons, because if there were a 
direct challenge to NFIB v. Sebelius there would be precedent 
on point. And the law stare decisis is a whole body of doctrine 
that binds judges itself. So no, I don't think one could assume 
that in a separate point in time that even Justice Scalia would 
necessarily decide the case the same way once there was 
precedent on the books.
    Senator Coons. I agree, and I look forward to discussing 
that in some more detail tomorrow. I have just, I think, 6 
minutes--your views of precedent, Justice Scalia's views of 
precedent, and the ways in which they may diverge I think are 
important, and important for us to spend some time on.
    Let me just recap this point. For President Trump, for 
Republican politicians, the argument about tax and about 
whether or not the mandate is a tax is the gateway to knocking 
down the entire Affordable Care Act, and that is also the line 
of attack being taken by the Department of Justice. You have 
already said it is not plausible to interpret the mandate as a 
tax. You didn't think it was a tax when it was raising billions 
of dollars in revenue. You certainly, I think, are unlikely to 
believe it is a tax when it raises no revenue. And the thing 
that might distinguish it from NFIB v. Sebelius is reliance 
interests and precedent. And when I have more time tomorrow we 
will go through that.
    But I just wanted to connect some dots, that Trump has 
repeatedly vowed to get rid of the ACA, has campaigned on it, 
has criticized the Chief Justice, has said his nominees would 
do the right thing, his administration is in court right now, 
arguing in a case to be heard in just 4 weeks, that it should 
be invalidated, and a person you have criticized, Chief 
Roberts, a person whose opinion, whose decision you have 
criticized, Justice Roberts, means, in many ways, that you have 
signaled, I think. You were added to the Supreme Court short 
list after you wrote that article, and today my Republican 
colleagues, who themselves have promised to repeal the ACA, are 
rushing through your nomination so you can be seated in time to 
hear this case. It concerns me greatly that that is the 
circumstances we are in.
    Let me ask one last line of questioning, if I might, in the 
5 minutes I have left. There is another subject on which 
President Trump has been, I think, unfortunately very, very 
clear, about what he hopes for from a Supreme Court nominee.
    Just days after Justice Ginsburg passed, the President was 
asked why there was such a rush to fill her seat before the 
election. And he responded, and I quote, ``We need nine 
Justices. You need that. With the millions of ballots that 
they''--and he meant the Democrats--``are sending, it is a 
scam. It is a hoax. You are going to need nine Justices.''
    The next day he told reporters, again, he doubled down, ``I 
think this''--and he means the election, from the context--
``will end up in the Supreme Court. It is very important. We 
must have nine Justices.''
    Our President has also been asked whether he will commit to 
a peaceful transition if he loses the election. He has been 
asked directly and repeatedly. And instead of responding in the 
way we would expect of any leader of the free world, with a 
clear and simple yes, he has tried to sow confusion and 
distrust in the potential results. So, Your Honor, I am 
concerned that what President Trump wants here couldn't be 
clearer, that he is trying to rush this nomination ahead so you 
might cast a decision, a vote, in his favor in the event of a 
disputed election, and he is doing his level best to cast doubt 
on the legitimacy of an election in which literally millions of 
votes have already been cast, most of them by mail.
    I was very encouraged, again, to hear from you 
specifically, you have not had any conversation with him about 
this topic, and that is not what I am suggesting. In fact, you 
repeated promptly, 28 U.S.C. 455. You are quite familiar with 
the recusal statute and its considerations. But I think the 
core issue in recusal is that any judge or Justice should 
recuse themselves from a case in which their impartiality might 
reasonably be questioned.
    Given what President Trump said, given the rushed context 
of this confirmation, will you commit to recusing yourself from 
any case arising from a dispute in the Presidential election 
results 3 weeks from now?
    Judge Barrett. Senator Coons, thank you for giving me the 
opportunity to clarify this, because I want to be very clear 
for the record and to all Members of this Committee that no 
matter what anyone else may think or expect, I have not 
committed to anyone or so much as signaled. I have never even 
written--I have been in a couple of opinions in the Seventh 
Circuit that have been around the edges of election law, but I 
haven't even written anything that I would think anybody could 
reasonably say, oh, this is how she might resolve an election 
dispute. And, I would consider it--let's see, I certainly hope 
that all Members of the Committee have more confidence in my 
integrity than to think that I would allow myself to be used as 
a pawn to decide this election for the American people.
    So that would be on the question of actual bias, and you 
asked about the appearance of bias.
    Senator Coons. Correct.
    Judge Barrett. And, you are right that the statute does 
require a Justice or judge to recuse when there is an 
appearance of bias. And what I will commit to every Member of 
this Committee, to the rest of the Senate and to the American 
people, is that I will consider all factors that are relevant 
to that question, relevant to that question that requires 
recusal when there is an appearance of bias. And there is 
caselaw under the statute, and as I referenced earlier in 
describing the recusal process at the Supreme Court, Justice 
Ginsburg said that it is always done with consultation of the 
other Justices.
    And so I promise you that if I were confirmed and if an 
election dispute arises, you know, both of which are ``ifs,'' 
that I would very seriously undertake that process, and I would 
consider every relevant factor. I can't commit to you right now 
for the reasons that we have talked about before, but I do 
assure you of my integrity and I do assure you that I would 
take that question very seriously.
    Senator Coons. Thank you, Your Honor.
    Just on the question of consultation, the Chief Justice, 
former Chief Justice Rehnquist, because this question came up 
in 2004, wrote a letter actually to Members of this Committee 
that there is no formal procedure for court review of a 
decision by a Justice in individual cases. It is just something 
Justice Ginsburg did say, that there was a practice of 
consultation.
    I do think at the end of the day what matters is removing 
any potential conflict here. Ensuring that there is confidence 
in our election, in the Supreme Court, and in its role is 
critical. I have reached out to a number of my colleagues to 
implore them to step back from the timing of this confirmation, 
to consider the possible confluence of three different factors 
here--an election, an ACA case, and a rushed timing in the 
middle of a pandemic. And I would just urge them one more time 
to think seriously about stepping back from this timing of this 
confirmation. That is not meant to impugn you or suggest that 
in some way you have engaged in some inappropriate 
conversation. That is just the confluence of these events at 
this time and this place.
    This election will have enormous consequences. I am 
troubled by what you have written about the Affordable Care 
Act. I am more concerned that the President has tried over and 
over and over to get rid of the ACA and that the American 
people have consistently said no, and that the consequences for 
a majority of Americans, who rely on the ACA in the middle of a 
pandemic, would be significant, and that the President has 
refused to embrace the American people's wishes and deliver 
some compelling alternative plan and instead has taken the 
battle back to the Supreme Court where it will be heard in just 
a month. I think to reach out and to strike this critical 
statute down now would be the worst example of judicial 
activism, which my colleagues say they don't want and which I 
hope will not happen. But I am gravely concerned by what I see.
    Your Honor, I believe your views are sincere, but I also 
think you genuinely think the Affordable Care Act is 
unconstitutional. That is my reading. And you are entitled to 
that view. But this body and the American people, we shouldn't 
kid ourselves. Bluntly, if our President and the Majority are 
able to swing the Court out of balance by replacing Justice 
Ginsburg by someone whose views may be significantly to the 
right, the health of a majority of Americans may well be in 
peril.
    Thank you, Your Honor.
    Chairman Graham. Thank you, Senator Coons. Judge, if it is 
okay we will do Senator Hawley's 30 minutes and take a break. 
Is that okay with you?
    Judge Barrett. Sure.
    Chairman Graham. So Senator Hawley, you are on deck. We 
will try to take a 15-minute break. And just one observation. 
There are really a lot of good questions, good interchange. Not 
one time has a Senator and the Judge talked over each other. I 
hope the American people understand that this is the way that 
it should be. Senator Hawley.
    Senator Hawley. Mr. Chairman, thank you. I would like to 
begin by asking consent to enter two letters into the record 
supporting the Judge's nomination, the first from the Family 
Research Council and the second from a group of State attorneys 
general, including the State attorney general from my home 
State of Missouri.
    Chairman Graham. Without objection.
    [The information appears as submissions for the record.]
    Senator Hawley. Thank you very much.
    Judge, it is good to see you again. I have been so 
impressed with your answers today. It is really quite 
extraordinary. I look forward to visiting with you a little bit 
here.
    Can we just start on the topic of independence, picking up 
where Senator Coons just was questioning you. I have heard my 
Democrat colleagues over and over again suggest that because, I 
guess, you clerked for Justice Scalia that you will 
automatically vote however he did. They attribute his opinions 
to you, his decisions to you, his method to you. Did Justice 
Scalia tell you what to do in your career? I mean, have you 
been in the habit in your life of doing exactly what Justice 
Scalia told you to do in your professional career?
    Judge Barrett. Well, Senator Hawley, as I said earlier, if 
you confirm me you are getting Justice Barrett, not Justice 
Scalia. You know, I share his method of interpreting the text, 
but, you know, I didn't agree with him in every case, even when 
I was clerking. I mean, then, he could tell me what to do, and 
even if I disagreed I had to go his way. But the fact that we 
share the same approach does not mean that we would always 
reach the same result.
    Senator Hawley. And you make up your own mind, don't you?
    Judge Barrett. I do make up my own mind.
    Senator Hawley. And you have your own views, I think it is 
fair to say. Is that accurate?
    Judge Barrett. Indeed I do.
    Senator Hawley. And you are a very accomplished jurist in 
your own right. Is that fair to say?
    Judge Barrett. Well, it feels a little immodest to opine on 
that.
    Senator Hawley. Well, I will say it is. You are very 
accomplished. So, I think this one-way attribution, that 
everything--you must just be--whatever Justice Scalia did, you 
would automatically do, I have to say frankly I think is a 
little bit demeaning.
    Let me ask you about some other attacks that you have 
endured today. Now, I noticed yesterday we were assured that 
you would not be attacked on the basis of your faith. I noticed 
that didn't last 24 hours. But I am not surprised because for 
3\1/2\ years we have heard consistent attacks from the Democrat 
side on nominees on the basis of their faith, including, of 
course, you, Judge Barrett, and we talked about this some 
yesterday.
    Today, the second Democrat Senator to speak questioned--
criticized you for speaking to a Christian legal group that has 
a program, a summer program for Christian law students, where 
you gave, I think, a lecture once or twice, on constitutional 
and statutory interpretation. So let me just ask you about 
that. You have talked about your faith. This has been well 
established. You accepted an invitation to speak to a group of 
Christian law students on the topic of your specialty. Tell us 
why you accepted the invitation.
    Judge Barrett. I had several other colleagues who had 
participated in the Blackstone program, lecturing, and I heard 
great things about it from them. We had a contingent of 
students from Notre Dame regularly attend this program, and 
they were among our most engaged and smartest students. And I 
went and did it. The first time I did it I really enjoyed it. 
The students were very, very engaged. So I did it--I don't 
know, I might have done it four or five times.
    Each summer I would go and just give a lecture on 
originalism, that was 1 hour of the--you know, Blackstone is a 
summer-long program, so I went and gave my 1-hour lecture at 
the beginning of it, and I really thought it was fun. To talk 
about the Constitution to an engaged group of students is fun 
for someone who is a law professor.
    Senator Hawley. Are you aware of anything in the 
Constitution or our laws that say that it is a disqualification 
for office for a believer of religious faith to go and lecture 
to law students of a similar faith in her area of expertise?
    Judge Barrett. I certainly--let's see. I want to be careful 
that I am not veering into answering hypothetical questions. 
But I certainly didn't think there was anything wrong with my 
going to speak to a group of Christian law students about my 
expertise.
    Senator Hawley. Let me ask you this. Senator Leahy also 
raised a pledge, a statement that you signed regarding 
abortion. You told us--you told the Committee, in response to 
his question, you and your husband both signed it. I am looking 
at the advertisement in question right here, the portion that 
you signed. You said that you signed it on your way out of 
church, if I remember correctly.
    Judge Barrett. I did. That was almost 15 years ago. At the 
back of church there was a table set up for people on their way 
out of mass to sign a statement, you know, validating their 
commitment to the position of the Catholic Church on life 
issues. The ad that was next to it, I don't recall seeing the 
ad at the time, and in context looking at it, it looks to me 
like that was an ad by the St. Joseph County Right to Life 
group. The statement that I signed, you know, it was, you know, 
affirming the protection of life from conception to natural 
death.
    Senator Hawley. And you just made reference to the fact 
again that it was in church. Can you just--why would it have 
been in the back of church? I mean, why would the signatures--
why would this have been available to sign, or not, as you so 
chose, in the back of church?
    Judge Barrett. Well, because that is the position of the 
Catholic Church, you know, on abortion. So I feel like I should 
emphasize here, as I emphasized to others asking me the 
question, that I do see as distinct my personal, moral, 
religious views and my task of applying the law as a judge.
    Senator Hawley. Is it safe to say, following that 
distinction you just made, though, that the signature that you 
lent, your husband also, reflects your understanding of your 
church's teaching and your own personal views? I mean, that is 
what this says, that you signed.
    Judge Barrett. So what I would like to say about that is I 
signed that almost 15 years ago in my personal capacity, when I 
was still a private citizen, and now I am a public official. 
And so while I was free to express my private views at that 
time, I don't feel like it is appropriate for me anymore 
because of the Canons of Conduct to express an affirmative view 
at this point in time. But what that statement plainly says is 
that when I signed that statement, that is what I was doing at 
that point, as a private citizen.
    Senator Hawley. And I am not aware of any law or provision 
of the Constitution that says that if you are a member of the 
Catholic Church and adhere to the teachings of the Catholic 
Church, or you have religious convictions in line with those of 
your church teaching, that you are therefore barred from 
office. Are you aware of any constitutional provision of that 
in effect?
    Judge Barrett. I would think that the Religious Test Clause 
would make it unconstitutional.
    Senator Hawley. Well, let me just ask you about the Test 
Clause, since you bring it up. Article VI says, ``No religious 
test shall ever be required as a qualification to any office or 
public trust under the United States.'' Can you just give us 
your sense, as a constitutional expert, scholar, and judge now, 
of the significance of Article VI for our constitutional 
scheme?
    Judge Barrett. So, the Religious Test Clause prohibits this 
body, and prohibits the government, generally, from 
disqualifying people from office because of their religious 
beliefs.
    Senator Hawley. And it guarantees, does it not, the freedom 
of religion. I mean, it is a--Article I, I am sorry, Amendment 
1, the First Amendment, will go on to talk explicitly, and I 
want to ask you about that in a second, about religious 
liberty. But Article VI is significant in that it sets out that 
one cannot be--no American citizen can be kept out of office 
based on his or her belief. You don't have to go and get 
someone's approval, certainly not somebody in government, their 
approval over what you believe, does it meet this test or not, 
do they like it or not. You don't have to get any sign-off. In 
fact, any kind of sign-offs are explicitly ruled out by the 
Constitution. Is that a fair characterization?
    Judge Barrett. The Religious Test Clause makes plain that 
denomination or belief can't be a reason to disqualify someone.
    Senator Hawley. And that is why I continue to say it is 
vital that we underline, in the Constitution, this Test Clause, 
and that we insist that it be applied in the context of your 
confirmation, Judge, and every nominee, for every high office 
who comes before this Committee. There are no religious tests 
for office, and the attempt to smuggle them in, even in the 
midst of this Committee's hearings to date, it must be resisted 
on the basis of the Constitution itself.
    Let me ask you about the First Amendment, about the free 
exercise of religion. That is, of course, how the First 
Amendment begins: ``Congress shall make no law respecting an 
establishment of religion or prohibiting the free exercise 
thereof.'' Tell me what you think this says about the place of 
religious observance in American life and its significance. Why 
is it protected like this in the First Amendment? What do you 
draw from that?
    Judge Barrett. I mean, I think its presence in the Bill of 
Rights, you know, like all of our rights, shows that it was one 
that the people, for generations beginning in 1791, considered 
central to being a free people.
    Senator Hawley. And there is no indication, from the 
Constitution, that religious believers are second-class 
citizens in any way, is there?
    Judge Barrett. Well, the free exercise certainly suggests 
to the contrary.
    Senator Hawley. And, in fact, the Free Exercise Clause and 
the First Amendment suggests that the exercise of religion, 
worship, religious belief gets special protection. I mean, it 
is singled out here for protection, along with, and immediately 
after it is speech, the press, right of the people peacefully 
to assemble--religion is given a special place, which the 
United States Supreme Court has recognized.
    Let me just ask you about attempts to disfavor religious 
believers on the basis of faith. Is it your understanding, can 
a government, at any level--Federal Government, State 
government, municipality, whatever--can they treat religious 
believers differently? Can they single them out for disfavor 
versus a non-religious group? Is that permissible in our 
constitutional order?
    Judge Barrett. Well, Senator Hawley, that is a complicated 
question, because, you know, there is a lot of doctrine 
surrounding that, and there aren't bright-line rules. And so 
that question would come up in a case with facts and, you know, 
it would require the whole judicial decision-making process. So 
it is not a hypothetical that I can answer.
    Senator Hawley. Let me ask you about the Court's decision, 
unanimous decision, in the Hosanna-Tabor case, which touches 
some of these questions, in which the Court there, is a 
question about church's ability--any house of worship, to hire 
and fire their ministers or those who perform religious 
functions, religious services. And in that unanimous decision 
the Court says that houses of worship are different, that they 
are unique, that they are given special protection under the 
First Amendment, and that, therefore, they must be accorded 
special status. They have to have the ability, for instance, to 
hire and fire ministers, those who are going to perform 
religious functions, the State, the Government cannot interfere 
with that.
    Do you agree with the teaching of that case? I mean, do you 
think that that case remains good law and is a significant 
decision?
    Judge Barrett. Well, Senator Hawley, I think the way to 
answer that question is, again, as I have said, I can't grade 
precedent but I can talk about a precedent from my court. So I 
was on a panel that decided a case called Grussgott which 
applied Hosanna-Tabor to the situation of a Jewish school which 
had fired a teacher, and the teacher sued, and the question was 
whether, following Hosanna-Tabor, that school was entitled to 
treat her as a minister, under the ministerial exemption 
recognized in Hosanna-Tabor.
    And my court, the panel that I was on, said that she was a 
minister, and we, you know, took the factors in Hosanna-Tabor 
and said nothing was a bright-line test. You look at the 
cluster, because Hosanna-Tabor was designed to give religious 
institutions the freedom to hire and fire their ministers, you 
know, in this case one of the Jewish faith, as consistent with 
their practice of their faith. And that view of ours, in 
Grussgott was embraced by the Supreme Court last term in Our 
Lady of Guadalupe.
    Senator Hawley. I think it is vital in this time and this 
season, Judge, where we are seeing many challenges to religious 
independence, many challenges to the ability of churches to 
conduct worship on equal terms with secular organizations, that 
the Supreme Court's unanimous decisions in this area, Hosanna-
Tabor and others, the Trinity Lutheran case, which was not 
unanimous but is a recent, very important case as well, I will 
just say, for myself, that I think that the lines that the 
Supreme Court has drawn, regarding the First Amendment, 
regarding the status of houses of worship, regarding the rights 
of religious believers, that now more than ever it is vital 
that those be respected, and that the Constitution be fully 
enforced, and that the line of cases that is now multi-years-
old that the Supreme Court has set out be followed. And I 
certainly hope that you will respect and apply that precedent 
going forward. I don't have any reason to think that you won't.
    Let me shift gears and ask about another attack that has 
been made on you today, having to do with the Kanter case. The 
Kanter case, we have heard about, Senator Durbin asked you 
about it at some length, Senator Klobuchar asked you about it 
as well. The Kanter case, first of all, is a case about the 
Second Amendment, the right to keep and bear arms. Is that 
right?
    Judge Barrett. That is right.
    Senator Hawley. And it is about whether or not someone who 
had been charged with and convicted of or pled guilty to a 
felony could keep and bear arms, under certain circumstances. 
Is that a fair summary?
    Judge Barrett. Yes.
    Senator Hawley. Now, I have heard repeatedly from my 
Democrat colleagues that you write in your dissent, you 
dissented in this case, you write in your dissent that the 
right to keep and bear arms is an individual right but the 
right to vote is not an individual right. But maybe I am 
reading a different opinion. That is not what you say in the 
opinion that I see, page 50 of your opinion, or of the joint 
opinion, your dissent. You refer to civic rights, voting rights 
as civic rights, and you say, civic rights, you define them, 
civic rights are individual rights. A moment later you say, 
``For example, the right to vote is held by individuals.''
    So, let's just set the record straight here. In this case 
you say that the right to vote is an individual right. Is that 
correct?
    Judge Barrett. That is correct.
    Senator Hawley. And the distinction between a civic right 
and the Second Amendment has to do with the purposes of that 
right. First of all, that is not a distinction you invented. Is 
that correct?
    Judge Barrett. That is correct.
    Senator Hawley. You were replying to both a chain of cases 
and also scholarship on this issue. Is that correct?
    Judge Barrett. That is correct, and also the arguments the 
litigants made in the Kanter case itself.
    Senator Hawley. And this designation of a civic right talks 
about what the right to vote, what its civic purposes are. In 
other words, it gives us a stake in our democracy. Is that fair 
to say?
    Judge Barrett. Yes.
    Senator Hawley. But you never, at any point, say that the 
right to vote is somehow secondary or less than, less 
fundamental than, any other right. Is that fair to say?
    Judge Barrett. Yes, that is fair to say. I never said that.
    Senator Hawley. In fact, your whole point in this case, 
which is a fundamental rights case, doesn't have anything to do 
with voting rights. This is not a voting rights case, is it, 
the Kanter case?
    Judge Barrett. It is not.
    Senator Hawley. It has nothing to do with voting rights. 
Your whole point in this case, a fundamental rights case, is 
that you think that your colleagues on the Seventh Circuit 
actually constricted fundamental rights too narrowly. That is, 
the Supreme Court of the United States has said in Heller that 
the right to keep and bear arms is a fundamental right. That is 
the Heller decision. You think, in this case, that your 
colleagues actually were constraining that fundamental right a 
little too narrowly and were shutting some people out of it. Is 
that fair to say?
    Judge Barrett. We did disagree about the scope of the 
right.
    Senator Hawley. So just to make the record perfectly clear 
here, the Supreme Court has said--the United States Supreme 
Court has said over and over that voting, the right to vote is 
a fundamental right, and I think you have affirmed that and 
recognized--today you have said that that is Supreme Court 
precedent. Am I right about that?
    Judge Barrett. Yes.
    Senator Hawley. And the Supreme Court has said repeatedly 
that they adhere to the one-person, one-vote standard, the sort 
of baseline, the touchstone, the keystone to that entire 
doctrine. Do I have that correct?
    Judge Barrett. Indeed, that is correct.
    Senator Hawley. And nothing in your opinion challenges that 
or changes that or calls into question, critiques, nothing. 
Right?
    Judge Barrett. Not one iota.
    Senator Hawley. Okay. I am glad that we are clear on that.
    Now, Senator Durbin said, as part of his line of 
questioning on this he suggested that, I don't know, perhaps 
that your opinion in this case somehow, which has nothing to do 
with voting rights, makes you friendly to what he characterizes 
as attempts to deny people the right vote on racial grounds. He 
went on to say that we all come to--every judge, all of us who 
come to the law, every judge who comes to the bench comes to 
the bench and to cases with their own individual experience and 
viewpoints. So let's just talk about that for just a second, if 
we could, when it comes to the fraught but vital issue of race 
and your own experience with that.
    You and your husband are the parents of a multiracial 
family.
    Judge Barrett. We are.
    Senator Hawley. Can you give us some sense, just in your 
personal experience, what that has been like for you, what that 
means to you, what experience you bring to the bench because of 
your experience as a parent in this unique context.
    Judge Barrett. Well, I think I could say how it has shaped 
me as a person. It has certainly, you know, whenever you have a 
life experience that makes you acutely aware in your 
interactions with other people, you know, it gives you empathy 
for them. I mean, the same is true of our having a son with a 
disability.
    But I want to make very clear, Senator Hawley, that while 
my life experiences, I think, you know, I hope have given me 
wisdom and compassion, they don't dictate how I decide cases, 
because, you know, as we discussed before and have discussed a 
couple of times, sometimes you have to decide cases in ways 
where you don't like the result. So while I hope that my family 
has made me a better person, and my children definitely have 
given me new perspectives on life, I still, in applying the law 
and deciding cases, you know, don't let those experiences 
dictate the outcome.
    Senator Hawley. You will follow the law wherever the law 
leads.
    Judge Barrett. Yes.
    Senator Hawley. Which I think is a good way to bring us 
back full circle to where we started, about your own 
independence. You have cultivated, I think it is fair to say, 
over the course of your very distinguished career, you have 
cultivated a reputation for original thinking, for 
independence, for, I would say, for courage and for toughness. 
And you've never--I see no evidence in your record that you 
have ever compromised, kowtowed, or bent your position to the 
whims of other people, especially people in power, based on 
what they wanted you to do or expected you to do or told you to 
do. Is that fair to say? I mean, have I missed something in 
your record?
    Judge Barrett. No. I think that is fair to say.
    Senator Hawley. I admire the way in which you have answered 
these questions, Judge, and your forthrightness on these 
issues, and I look forward to talking with you more tomorrow.
    And with that, Mr. Chairman, I yield back my time.
    Chairman Graham. Thank you, Senator Hawley. We will 
reconvene in 20 minutes, and we will go to about 6:30 and take 
a 30-minute break to have some dinner, and come back and finish 
out round one today. So a 20-minute break.
    [Whereupon the Committee was recessed and reconvened.]
    Chairman Graham. The hearing will come to order.
    Senator Blumenthal.
    Senator Blumenthal. Thank you very much, Mr. Chairman. 
Thank you for being back, Your Honor, and thank you to your 
family as well.
    I want to just begin by saying, perhaps not surprisingly to 
you, that I was really disappointed by your responses to a 
number of my colleagues, most recently to Senator Coons, on the 
issue of whether you would participate in the decision 
involving the upcoming election if you are confirmed. I 
continue to believe that if you were to participate in a 
decision involving that election, it would do enduring 
explosive damage to the Court. I think you know it would be 
wrong. Not because of anything you have done--in fact, I am not 
raising the issue of whether you have done any sort of deal or 
commitment--because of what Donald Trump has done and my 
Republican colleagues, because they have indelibly put at issue 
your integrity through their statements. The President has said 
that he is putting you on the Court as the ninth Justice so you 
can decide the election. He has been very clear and 
transparent. And the American people are not dumb. They are 
watching and they are listening. And if you were to sit on this 
case, if it goes to the Supreme Court, the American people 
would lose faith and trust in the Court itself. It would be a 
dagger at the heart of the Court and our democracy if this 
election is decided by the Court rather than the American 
voters.
    So, I wanted to begin by making that point and then go to, 
again, the real people who are really in this room with us and 
who will be affected by you as a Justice.
    Yesterday, I introduced you to Conner Curran, you may 
recall. He is 10 years old. I was with him on his tenth 
birthday, September 27th. He is a remarkable champion. He was 
diagnosed, as you may remember, with Duchenne muscular 
dystrophy at age 4.
    [Poster is displayed.]
    Senator Blumenthal. His parents were told to take him home 
and give him a good life because he would soon lose his ability 
to walk, told his muscles would get so weak that he would 
eventually lose his ability to smile. And he is still smiling.
    What lies behind that smile is untold pain, physical pain, 
the anguish of going through the needles and the prodding and 
the treatments. But for his family, it is also the anguish of 
wondering whether they will be able to pay for treatment that 
has kept him alive and whether he will be with them for all of 
life's milestones.
    They sent me a letter that they asked me to share with you, 
saying to you, Judge Barrett, ``Please protect Conner.'' And 
they wrote also for millions of other Americans, 135 million 
Americans, many of them children just like Conner, but also 
Christine Miller from Bloomfield, Connecticut. She was 
diagnosed with a thyroid condition. Her condition was only 
discovered because of the ACA, which gave her affordable 
coverage for the first time in a long time using Connecticut's 
Exchange, Healthcare Exchange. And they wrote for people like 
Julia Lanzano in Cheshire, Connecticut.
    [Poster is displayed.]
    Senator Blumenthal. She suffered from headaches for years, 
and she put off going to a doctor because she lacked insurance. 
So typical and common for people: Put it off. When Julia 
finally saw a doctor, still without insurance, she learned she 
had a brain tumor, and she was eligible for coverage under 
Connecticut's 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, I am 
sure, protection for people who suffer from pre-existing 
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 crystal clear because you stated to Senator 
Feinstein that--and I am going to quote, ``So far as I know, 
the case next week doesn't present that issue. It is not a 
challenge to pre-existing conditions coverage or to the extreme 
lifetime maximum relief from a cap.'' And, technically, you are 
right. But--it is a big ``but''--if the trial court is upheld 
and there is no severability, the entire Act goes down. That is 
what the Trump administration is asking the Court to do. That 
is what the plaintiffs want done. Correct?
    Judge Barrett. I gather that--Senator Coons had shown the 
brief with the litigating position of the Department of 
Justice.
    Senator Blumenthal. Right. I want to move on to another 
healthcare case, and this one involves some of the letters that 
Senator Hawley was mentioning, and I feel I need 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.
    Judge Barrett. Okay.
    Senator Blumenthal. I am going to be asking some questions 
about your legal position, so in case I am unclear in any of my 
questions, I want you to tell me.
    Judge Barrett. Thank you, Senator.
    [Poster is displayed.]
    Senator Blumenthal. You signed onto this 2006 open letter 
sponsored by an organization then known as the St. Joseph's 
County Right to Life, which was published in the South Bend 
Tribune. Is that the letter that Senator Hawley was mentioning?
    Judge Barrett. I believe he--the statement that is on the 
left, I think Senator Hawley had read the language. I cannot 
remember verbatim, but it was something like, you know, we 
support the right to life from fertilization to natural death, 
yes.
    Senator Blumenthal. The letter and ad referred to Roe v. 
Wade's legacy as, quote, unquote, ``barbaric.'' Correct?
    Judge Barrett. I do not think that that is part of the 
statement. I think that is part of the ad that appeared on the 
page next to it.
    Senator Blumenthal. They appeared side by side. Correct?
    Judge Barrett. I believe that it ran that way in the 
newspaper. I am not sure that I ever saw it in the newspaper. 
But, yes, that is my understanding----
    Senator Blumenthal. That is how it appeared, so they were 
side by side.
    Judge Barrett. That is--yes, based on--yes.
    Senator Blumenthal. And the St. Joseph's County Right to 
Life sponsored the letter that you signed?
    Judge Barrett. I think the St. Joseph County Right to Life 
organization was the one who presented the statement that I 
signed at the back of church.
    Senator Blumenthal. I want to give you an opportunity to 
clarify. You did not disclose that letter when you were 
nominated to the Seventh Circuit in 2017. Did you?
    Judge Barrett. I did not, Senator Blumenthal, and I am 
actually very glad that you brought that up because I just want 
to clarify for the record.
    Number one, I did not have any recollection of that letter. 
I had signed it--or the statement. I signed it almost 15 years 
ago quickly on my way out of church, and, you know, the 
questionnaire asked me for 30 years' worth of material, and I 
produced more than 1,800 pages. And so I did not recall it.
    After it came to my attention, I did go back and look at 
the questionnaire, and I actually do not think that particular 
statement is responsive to Question 12, which is, I think, the 
closest that it would come, I do not think it is responsive. 
But, in any event, it is part of the public record, and I am 
very happy to discuss it. But I was not hiding----
    Senator Blumenthal. It is part of the public record now, 
and it is a letter. The questionnaire asked for letters. Have 
you disclosed it now? Have you provided it officially?
    Judge Barrett. So, Senator, as I said, I have 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 wanted questions for the record with 
more specific detail. But I did not understand that to be 
responsive to Question 12, I think it is.
    Senator Blumenthal. Well, 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 onto this letter regarding Roe v. Wade. It was sponsored 
by the University Faculty for Life at Notre Dame. You remember 
that organization. Correct?
    [Poster is displayed.
    Judge Barrett. I do.
    Senator Blumenthal. And the letter described Roe v. Wade 
as--it is behind me--``infamous,'' and it stated that the 
signatories, quote, ``renew our call for the unborn to be 
protected in law.'' Correct?
    Judge Barrett. Yes, I believe the full statement says, I am 
testing my eyesight here, ``Our full support for our 
university's commitment to the right to life,'' because, you 
know, 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 University Faculty for Life, I 
signed that statement.
    Senator Blumenthal. But you did not disclose that letter--
--
    Judge Barrett. Again, Senator, I produced 1,800 pages of 
material, and all six prior nominees have had to supplement 
because they have overlooked things. Thirty years' worth of 
material is a lot to try to find and remember.
    Senator Blumenthal. You disclosed it, in fact, just about 3 
days ago, I believe. Right?
    Judge Barrett. Because that is when it was brought to my 
attention. I had no recollection of it, and it surfaced in the 
press, and so it came to my attention, and then I supplemented. 
And I did think it was responsive because it was a statement of 
an organization of which I was a part, and I belonged to the 
University Faculty for Life at the time.
    Senator Blumenthal. If this process maybe had been a little 
less rushed, you might have had more time to go back and recall 
some of these documents.
    Judge Barrett. Well, Senator, as I said, all six prior 
nominees or the most recent six have had to supplement, too. So 
I do not think it really had anything to do with time. I think 
it had to do with the volume of material.
    Senator Blumenthal. And when you and I spoke when you 
appeared before this Committee in connection with your 2017 
nomination, I did not have the benefit of any of these 
documents, although I asked you about right of privacy and the 
validity of Roe v. Wade. Correct?
    Judge Barrett. Senator, I said on my SJQ when I was 
nominated to the Seventh Circuit and I have said again now I 
produced all the material that I could find, and I conducted 
searches to try to find things that I forgot, and I did not 
find that. I understand that someone had to manually go to 
Notre Dame and look through back archives. I did not remember 
it, and I could not find it. I assure you, I was not trying to 
hide it from you.
    Senator Blumenthal. So, Judge, and I apologize for 
interrupting you. I am pressed for time.
    Judge Barrett. Sure.
    Senator Blumenthal. Respectfully, I want to share another 
healthcare story with you. It is about Samantha. One night in 
January 2017, Samantha went out with a few friends and co-
workers. She woke up the next morning in a co-worker's home, 
confused, scared, covered in blood. She had been raped.
    [Poster is displayed.]
    Senator Blumenthal. After she was raped, Samantha was, in 
her words, ``a zombie.'' She could not change clothes, she 
could not shower, she could not drink--or think. She wanted 
this event to be erased from her memory.
    Samantha's attacker also began stalking her, and she was 
struggling with depression and PTSD. In March, Samantha took a 
pregnancy test and then another, then another. It kept coming 
back with the same result: pregnant. After the horrible 
violence she faced, she simply could not process that she was 
now pregnant.
    When Samantha shared her story with me, she said, ``I knew 
if I could not 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 did not compel 
Samantha to get an abortion. It did not 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 Samantha's right 
to have an abortion?
    Judge Barrett. Roe v. Wade clearly held that the 
Constitution protected a woman's right to terminate a 
pregnancy. Casey upheld that central holding and spelled out in 
greater detail the test that the Court uses to consider the 
legality of abortion regulations.
    Senator Blumenthal. Now, I am asking you this question 
because the group that sponsored the first letter, St. Joseph's 
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 woman's life is in danger.'' And 
the purpose of the letters that you signed seem to be a 
statement of legal position, but you are saying that there is a 
constitutional right to an abortion?
    Judge Barrett. Senator, the statement that I signed from 
the St. Joseph County Right to Life did not say anything about 
rape or incest or anything of those things. It simply validated 
the teaching of my church on the sacredness of life from 
conception to natural death.
    Senator Blumenthal. What I hear you saying is, in the 
Constitution there is that right.
    Judge Barrett. You mean when I was talking about Roe and 
Casey a moment ago?
    Senator Blumenthal. Well, Roe was correctly decided. You 
are agreeing that----
    Judge Barrett. What I said was that Roe held that the 
Constitution protects a woman's right to terminate a pregnancy, 
that Casey reaffirmed that holding, and, indeed many cases 
after Casey have affirmed that holding again, Whole Woman's 
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----
    Senator Blumenthal. Not your personal belief, Your Honor. 
Your legal position. Are you willing to say that Roe was 
correctly decided? Because that is really the essence of the 
question here.
    Judge Barrett. Well, Senator, as I have said, you know, to 
others of your colleagues in response to questioning, that it 
is inconsistent with the duties of a sitting judge and, 
therefore, has been the practice of every nominee that has sat 
in this seat before me to take positions on cases that the 
Court has decided in the past.
    Senator Blumenthal. 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.
    [Poster is displayed.]
    Senator Blumenthal. Let me talk about Tracey. I want to 
tell you about her because she, again, came to me, told me she 
was diagnosed with stage 4 endometriosis and that it had caused 
an ongoing inability to have a healthy pregnancy. But as she 
said, 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, some of them because they have suffered 
wounds of war.
    Tracey was scared when she saw the executive director of 
the St. Joseph County Right to Life recently stated, and I 
quote, ``We would be supportive of criminalizing the discarding 
of frozen embryos or selective reduction through the IVF 
process.'' So Tracey wanted me to ask you--in fact, she asked 
me to pose this question: Is it your legal position that making 
IVF a crime would be constitutional?
    Judge Barrett. Well, Senator, the statement that I signed, 
as we discussed, you know, affirmed the belief of my church 
with respect to matters of life, but----
    Senator Blumenthal. I am not asking about what you signed. 
I am asking about your present legal position.
    Judge Barrett. What would I----
    Senator Blumenthal. Is making IVF a crime----
    Judge Barrett. Senator, you----
    Senator Blumenthal [continuing]. Constitutional? Sorry. Go 
ahead.
    Judge Barrett. Sorry. I was trying to answer. But you are 
quoting positions from the St. Joseph County Right to Life. I 
am not a member of that organization, and so I am 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, you know, what policy position 
someone might take, you know, as I have said to your 
colleagues, I just--it is 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 I am a judge, 
and so I cannot publicly express views.
    Senator Blumenthal. Just to be absolutely clear, I am 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 I 
am not going to ask again, just this last time--criminalizing 
it, would it be constitutional? I think there is a clear 
answer.
    Judge Barrett. But, Senator, I have repeatedly said, as has 
every other nominee who sat in this seat, that we cannot 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 
consultation with colleagues and opinion writing and 
consideration of precedent. So an off-the-cuff reaction to that 
would just circumvent the judicial process.
    Senator Blumenthal. Well, again, I am disappointed. I think 
Tracey 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. And I understand your 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 healthcare providers to provide that care 
or abortion care?
    Judge Barrett. Well, Senator, again, that is a hypothetical 
question, and so, as I have said, to give off-the-cuff 
responses about abstract issues--and I should clarify to say it 
really does not matter if they are hard questions or easy 
questions. It is 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 and 
my judicial role can be answered only through the judicial 
process.
    Senator Blumenthal. Just to be absolutely clear, there are 
millions of women like Samantha and Tracey and the veterans I 
mentioned who are terrified to think that their doctors and 
healthcare providers would be potentially in jail, at risk of 
prosecution, doctors who are exercising currently protected 
rights that Samantha says saved her life. And I believe our 
healthcare providers are heroes, particularly during the 
pandemic, but I want to ask you one more question about these 
documents.
    [Poster is displayed.]
    Senator Blumenthal. In the 2013 letter that you signed, 
there is the following 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?
    Judge Barrett. You know, I think that statement is an 
affirmation of life. You know, 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, you know, women in crisis pregnancies, to support 
babies. So it is really no more than the expression of a pro-
life view.
    Senator Blumenthal. I expect we will 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 
Kanter v. Barr, and I think your approach here in effect usurps 
the legislature's appropriate role in making policy judgments 
in the case of Kanter, 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?
    Judge Barrett. I do not remember the order in which I 
listed them.
    Senator Blumenthal. It was first.
    Judge Barrett. I accept that. I just do not remember the 
order.
    Senator Blumenthal. Okay.
    Judge Barrett. I did list it. I remember listing it.
    Senator Blumenthal. Okay. But that decision seems to usurp 
the legislature's 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. That is 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.
    [Poster is displayed.]
    Senator Blumenthal. Natalie, who is shown here with her 
brother, Daniel. Daniel was killed at Sandy Hook Elementary 
School in Newtown, Connecticut, on December 14, 2012. Daniel 
was 7. I was there that day. I saw the parents after they had 
learned that they had lost 20 beautiful children. And six great 
educators died as well. In the firehouse that day, there was 
unspeakable grief. And 8 years later, 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 a 
movement to deal with the epidemic and scourge of gun violence 
in this country. What happened at Sandy Hook was not an 
isolated instance. There have been 236 other mass shootings in 
the last decade. In the last 10 years, gun violence has taken 
more than 354,000 lives in rural communities, in urban 
communities, all around the country, and I am sure in Indiana 
and South Bend as well.
    Your opinion in Kanter goes farther than Justice Scalia in 
Heller. In fact, you characterized it as ``kind of radical.'' 
It is, in effect, an outlier. And it is, in fact, radical.
    Judge Barrett. Did I say it was radical in the opinion?
    Senator Blumenthal. I think you said, ``It sounds kind of 
radical to say felons can have firearms.'' That is a direct 
quote.
    Judge Barrett. Oh, I did not remember that particular 
language.
    Senator Blumenthal. You can----
    Judge Barrett. I am not--I just do not recall it, but I am 
not nitpicking about it.
    Senator Blumenthal. We can look it up.
    Judge Barrett. That is fine, Senator. I do not think you 
are making it up. Trust me. No, I will check it and look it up. 
But I know that is not the thrust of your question.
    Senator Blumenthal. It sounds kind of radical because it is 
radical. In fact, no courts of appeals, except maybe the 
Seventh Circuit, has adopted this reasoning.
    Judge Barrett. The Third Circuit I think has a rule that 
is----
    Senator Blumenthal. The Third Circuit. Any others?
    Judge Barrett. I do not know that it has come up in----
    Senator Blumenthal. I knew there was one circuit that did. 
I was not sure which one, but thank you.
    Judge Barrett. My position was consistent with a Third 
Circuit en banc decision that had already been decided.
    Senator Blumenthal. And cutting through all of the 
legalese--and we have had quite a bit of it going back and 
forth--what this approach does potentially is mean that 
Connecticut's gun safety provision that the people of Newtown--
Kristin and Michael Song on behalf of their son, Ethan, who 
perished because of a gun that was unsafely stored.
    [Poster is displayed.]
    Senator Blumenthal. They championed a measure called 
``Ethan's Law,'' common-sense measures that might have 
prevented the death of Shane Oliver, Janet Rice's son, who died 
on October 20, 2012. Shane was killed when he was 20 years old 
in Hartford. He died fighting for his life in Hartford 
Hospital.
    [Poster is displayed.]
    Senator Blumenthal. And measures like the emergency risk 
protection order that Connecticut now has, 19 States have these 
laws. They have saved lives. And extreme risk protection order 
laws which help minimize risk might well be struck down under 
the reasoning of your dissent.
    Judge Barrett. 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 simply on that basis. It said that guns can be 
kept out of the hands of the dangerous, and it did not say 
anything about other gun safety or background check. Those are 
all issues that are being litigated across the country and were 
not at issue in Kanter.
    Senator Blumenthal. But supplanting the legislature's 
judgment about when dangerous people should be protected from 
themselves if they are potential suicides, as Vic Bencomo, 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, that is 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. And folks who live 
in Connecticut are terrified of that prospect, at least many 
who have talked to me----
    Judge Barrett. Sandy Hook was a tragedy, so I express the 
deepest sympathy for those who have experienced that loss there 
and elsewhere. But Kanter, you know, I hope you take some 
comfort from Kanter being a much narrower decision that does 
not have any effect on those sorts of loss. Thank you, Senator 
Blumenthal.
    Senator Blumenthal. Thank you. Thank you, Judge.
    Chairman Graham. Senator Tillis.
    Senator Tillis. Thank you, Mr. Chairman. Thank you, Judge 
Barrett.
    Mr. Chairman, before I get started, I would like unanimous 
consent to submit a letter from my primary care physician 
indicating that I have fully complied with CDC guidelines, been 
cleared, like 2,000 other North Carolinians yesterday, and I am 
glad that they are healing.
    Chairman Graham. Without objection.
    [The information appears as a submission for the record.]
    Senator Tillis. I would also like to put forward three 
letters in support of Judge Barrett, including one from Devan 
Patel, a former student who speaks very highly of your academic 
prowess but also your compassion.
    Chairman Graham. Without objection.
    [The information appears as submissions for the record.]
    Senator Tillis. I would also like to cover what Senator 
Blumenthal just did. I think we should go back. I believe he 
alluded to it, Judge Barrett, but Question 12a of the Committee 
questionnaire asked for books, articles, reports, letters to 
the editor, editorial pieces, or other published material you 
have written or edited. Is it fair to say that if you signed a 
petition, you did not write or edit any of the petition you 
signed?
    Judge Barrett. I did not write or edit that.
    Senator Tillis. It also needs to be restated--I think you 
alluded to it, but 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 your being 
forthcoming, that you have 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 in quarantine, I 
have enrolled in two studies so far. I will be giving blood on 
Friday to enroll in another program at UNC Chapel Hill, and I 
am scheduled to donate convalescent plasma. Because this is 
being aired, I hope that anyone who has recovered from COVID 
will do their part to try and heal this country from the health 
challenges that COVID has presented us with. I intend to do my 
part.
    I also would like to say I like to consider the Senate an 
essential business, and I believe that the Architect of the 
Capitol and our attending physicians here have taken great 
measures to make sure that we can safely come to work. And I 
would encourage anybody who works in the Senate to come to 
work.
    I want to also go back to something that Senator Feinstein 
said earlier, and you are not going to have to answer this 
question. Senator Feinstein mentioned earlier that we have had 
a surge in applications for guns or purchases of guns. I wonder 
if a part of that is where we find our society right now. We 
are seeing great cities burned and looted. In my highway patrol 
in North Carolina, 75 percent 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 acts of violence and 
public safety out there and condemn violence against law 
enforcement, which is rampant.
    I lost a sheriff's deputy just about a month ago who was 
shot protecting a family. So, yes, Senator Feinstein, I suspect 
that gun purchases are up, but I suspect the root cause behind 
a lot of them have to do with people's personal safety.
    To your family, I would encourage all of your family 
members and your students who mercifully--or your children, who 
are your students, too, who are mercifully taking a break, to 
treat social media like roadkill: Just do not look at it 
because if you do, you are going to regret it.
    I am going to also ask unanimous consent to put forth some 
articles or tweets from prominent people that I think kind of 
give you an idea of the guerrilla tactics that are being used 
right now. And, the Committee--this has sounded a whole lot 
like a lobbying session. It is almost as if you are being 
interviewed to become a U.S. Senator so that you can decide 
policy on the Affordable Care Act and a number of other things 
that I will get to.
    But behind the curtains, we are seeing people say all kinds 
of things about you. One called you a ``white colonizer'' for 
actually adopting two Haitian children. We have another one 
calling you a ``handmaid in a clown car,'' and I am not going 
to--it will be submitted for the record, but the profanity used 
in there.
    Another one that says that, yes, you are a good mom, but 
that does not qualify you as a judge. What qualifies you as a 
judge is being an extraordinary professor, an extraordinary 
student, and an extraordinary jurist. And I think that these 
people need to recognize doing the bidding of this Committee by 
attacking you outside of the Committee is as bad as them being 
in this Chamber.
    Now, I also want to talk about the discussion on Roe v. 
Wade and the Affordable Care Act. Senator Feinstein in, I 
think, the same 2 or 3 minutes said that she wanted to protect 
Roe v. Wade but overturn Heller. Those seem to be incongruent, 
but I will just leave that out there. They are asking you to 
basically legislate. I do not want you to do that. But when we 
talk about Roe v. Wade, the one thing that is conveniently 
missed about this discussion is something that I think most of 
the American people are at odds with the position that every 
Member of the Democratic conference supports.
    My granddaughter went to her 2-month health checkup today. 
She weighed in at 10.1 pounds [cell phone is held upright]. And 
you can't see this picture, but I am telling you, from this 
grand-daddy's eyes, she is gorgeous. But she was born 3 weeks 
premature, and she only weighed a little over 6 pounds. She was 
discharged from the hospital within 36 hours. My colleagues on 
the other side of the aisle want to talk about the broad 
strokes of Roe v. Wade. They do not want to talk about the 
radical policy that would allow the right to take that child 
away that I just held in my arms 2 or 3 weeks ago, and 8 weeks 
ago when she was 3 weeks premature.
    Judge Barrett, I believe--I have complete confidence in 
your integrity. I have complete confidence that you are going 
to go and you are going to be a great Justice. But I do want to 
ask a little bit about maybe your experience when you were 
working for--actually, I want to start when you were in school. 
Did you have--when you came in, you were obviously a brilliant 
student. You did your homework. We have heard professors attest 
to your intelligence and your performance in school. Did you 
ever go into a classroom where the professor was espousing one 
position and you were espousing another one and you ended up 
coming out with a different perspective?
    Judge Barrett. Sure.
    Senator Tillis. Did you ever change your professor's 
perspective?
    Judge Barrett. I am not sure about that.
    [Laughter.]
    Senator Tillis. Well, it is kind of an unfair balance.
    Okay. Now, fast forward to when you were a clerk for 
Justice Scalia. I just 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 them. He said it is actually a fairly quick process 
to winnow out the ones where there is no dispute, and the ones 
there is no split circuit, so he moved through it pretty 
quickly.
    I understand that Justice Scalia, at least in some 
sessions, would have a mix of clerks. They would be across the 
ideological spectrum. Was that the case when you were clerking 
for him?
    Judge Barrett. I would say that not all four of us--he had 
four clerks, and we were not--we were not all of the same mind. 
There was a mix.
    Senator Tillis. Were there ever cases when you went before 
Justice Scalia and you thought that maybe he was leaning one 
way where he actually listened to the arguments from the clerk 
and modified his position? Or was it like the professor 
discussion?
    Judge Barrett. No, I think he definitely listened. I mean, 
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. And so, no, he definitely--it was 
part of the give and take, though to be clear he was the one 
with the commission and he was the one who made the decisions.
    Senator Tillis. Thank you. The last thing I am going to 
say, because I want to yield back more time than most other 
Members, is, Mr. Chairman, you opened up this morning talking 
about the Affordable Care Act. I do not think there is anybody 
in the U.S. Senate that does not want to make sure that every 
single picture that we have seen here, that those folks have 
affordable healthcare and that they 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 could keep it; if you like your healthcare, you could keep 
it. What we are not talking about are the thousands of people 
who were already forced off of their job healthcare because 
employers changed hours, and now instead of working one full-
time job, you have got to work two full-time jobs because the 
businesses cannot afford it.
    We have got a fundamental problem here. We need to protect 
every one of them, but we also need to make sure that people 
who have a health plan under the Affordable Care Act can 
actually afford to use it. In the catastrophic situations, it 
is life-changing, and thank God that it is there for them. But 
what about so many other people that only have it and will only 
use it if they have a catastrophic situation? Because they 
cannot afford the co-pays, they cannot afford the underlying 
costs. We need to fix that. We should not expect a Justice or 
the Supreme Court to fix it. That is our job. We should all 
show up here for work, and we should get that done, and we 
should also work on all the other things that this country is 
suffering from as a result of COVID.
    Thank you, Judge Barrett. I look forward to supporting your 
nomination.
    Judge Barrett. Thank you, Senator Tillis.
    Chairman Graham. Thank you. Senator Hirono.
    Senator Hirono. 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. We lost more than 200,000 Americans to COVID-19. 
That is more than the entire population of the Big Island in 
Hawaii, more than the population of Tempe, Arizona; Cedar 
Rapids, Iowa; Wilmington, North Carolina; Charleston, South 
Carolina; Waco, Texas. I could go on. Two hundred thousand 
American lives plus.
    [Poster is displayed.]
    Senator Hirono. This is a photo of a memorial outside the 
White House where President Trump held a reckless superspreader 
event 2 weeks ago to announce this Supreme Court nomination. 
The memorial shows 20,000 empty chairs, one chair representing 
10 American lives lost to COVID-19.
    [Poster is displayed.]
    Senator Hirono. And one of those chairs represents Veronica 
Guevara's grandfather, who is pictured here with Veronica. 
Veronica, who is from Iowa, has experienced the painful impact 
of the Trump administration's failure to address the pandemic. 
Her family is composed of essential workers who are working on 
the front lines of this pandemic.
    Her mother, who worked at a food-processing facility, 
caught COVID-19 at work and was eventually hospitalized for 7 
days. Thankfully, her mother recovered. But then her 
grandparents got COVID-19 and were admitted to the hospital. 
And although her grandmother recovered, sadly, her grandfather 
did not make it.
    After experiencing all of this tragedy, Veronica shared, 
quote, ``It is even more so 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 hardworking 
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 they are going to pay rent. Millions of them are out of--
they do not have jobs. They are 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. That is because we 
know that within your own caucus you cannot agree on one bill 
that fits the critical needs of this country. In fact, there 
are at least 20 Republicans, we heard, who have said, ``We are 
done. We are 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 
ideologically driven Justice to the Supreme Court instead of 
helping the people in our country suffering during this 
pandemic.
    Mr. Chairman, I have some letters of opposition to Judge 
Barrett's nomination to enter into the record. These are 
letters from Lambda Legal, the Japanese American Citizens 
League, and the National Asian Pacific American Women's Forum, 
which was joined by 55 reproductive justice groups. I ask 
unanimous consent to enter these letters into the record.
    Chairman Graham. Without objection.
    [The information appears as submissions for the record.]
    Senator Hirono. Judge Barrett, Chief Justice John Roberts 
has recognized that, and I quote him, ``the judicial branch is 
not immune,'' end quote, from the widespread problem of sexual 
harassment and assault and has taken steps to address this 
issue within the judiciary. As part of my responsibility as a 
Member of this Committee and, indeed, all of the Committees on 
which I sit, to ensure the fitness of nominees for a lifetime 
appointment to the Federal bench or to 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?
    Judge Barrett. No, Senator Hirono.
    Senator Hirono. Have you ever faced discipline or entered 
into a settlement related to this kind of conduct?
    Judge Barrett. No, Senator.
    Senator Hirono. Judge Barrett, do you think it is 
appropriate for Justices to consider real-world impacts in 
their decision-making as Justice Ginsburg noted in a number of 
her dissents?
    Judge Barrett. Well, Senator, the doctrine of stare decisis 
is a good example of that because the factor reliance interests 
takes into account the real-world impact, the way that people 
have ordered their affairs and relied on decisions. So there 
are contexts, yes, in which considering the impact is expressly 
part of the doctrine.
    Senator Hirono. So, you would say then--and you have 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?
    Judge Barrett. Senator, to be clear, I have the utmost 
empathy of the stories, you know, that you have told, including 
the story of Veronica's family, are very moving. If I were a 
Justice, the commitment that I would make to you and all people 
affected 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 or disrupt in any way the policy choices that 
you and your colleagues have adopted.
    Senator Hirono. So, are you saying that the impact of the 
Affordable Care Act on the millions of people who rely upon it, 
that those you would deem to be policy considerations that we 
should address?
    Judge Barrett. Senator, I think that you choose the law, 
and you have structured the Affordable Care Act. It is 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 to 
traditional legal materials, looks to the briefs. It listens to 
the real-world impact on the litigants who are before the court 
arguing the case, because every case affects real litigants. 
Every case affects real people. I said in my opening statement 
yesterday that, you know, when you pass statutes, they are 
often named for the co-sponsors of the bill. But cases decided 
by all courts are typically named after the parties. They 
affect real people.
    Senator Hirono. Judge Barrett, so are you saying that all 
of the stories that we brought forth yesterday and the millions 
of people who are relying on the Affordable Care Act can rely 
upon you that those impacts would be considered by you, that 
you would consider those to be legal arguments? Because when 
you say that you are going to make a decision based on the law, 
the real-life stories that we have been talking about, you 
would consider those to be part of the law?
    Judge Barrett. 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-life people who have had a 
real-life dispute. And it is the job of a judge deciding every 
case to take into account the real-world consequences of the 
parties before it.
    Senator Hirono. 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 
effect it would have on your decision regarding the law?
    Judge Barrett. Well, Senator, I do not know what context--
the particular context in which Justice Ginsburg was describing 
that. I think what I am trying to align myself with is the law 
and that I will take into account all factors, including real-
world impacts, when the law makes them relevant, as it clearly 
does, for example, in the doctrine of stare decisis.
    Senator Hirono. I will get to your views of precedent in a 
moment. I will give you a real-life example of Justice 
Ginsburg. In Ledbetter v. Goodyear Tire & Rubber Company, Lilly 
Ledbetter worked at a Goodyear plant for 19 years as an area 
manager, a position held mostly by men. Lilly was paid less 
than all of her male counterparts. When she eventually realized 
this stark inequality, she sued for pay discrimination, and a 
jury agreed. But the Supreme Court kicked Lilly's claim out of 
the Court for being too late. The conservative majority, 
including your mentor, Justice Scalia, interpreted Title VII's 
180-day time limit to mean that Lilly had to have filed her 
claims 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 
colleagues' approach to the case. 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, in Epic Systems Corp v. Lewis, 
employees who had been illegally underpaid joined together to 
seek back pay in court. To block this effort, their employers 
forced them to sign an arbitration agreement prohibiting 
collective actions. They actually had to sign these arbitration 
agreements in order to even have a job, keep their job. So the 
Supreme Court's conservative majority, including Justice 
Scalia, sided with the company. They interpreted a general 
Federal arbitration law to override two worker protections laws 
instead of recognizing that the worker protections laws fall 
sensibly within the exceptions in the arbitration law, meaning 
that the worker protections laws should prevail.
    Again, Justice Ginsburg strongly disagreed with the 
majority's approach to the case. In her dissent she pointed out 
that blocking joint lawsuits would deter most workers from 
seeking individual unpaid wage claims because of the cost of 
lawsuits and fear of retaliation. She warned the majority's 
decision would result in hurting vulnerable low-wage workers.
    Now, those are the kinds of real-life impacts. The reality 
of women who are not paid the same as their male counterparts 
because of sex discrimination happening, that she has no way of 
finding out about, or of workers who are forced to sign an 
arbitration clause that overrides worker protection--other 
worker protection laws. Those are the kind of real-world 
impacts.
    So, do you think Justice Ginsburg was wrong to consider 
real-world impacts in her decision-making?
    Judge Barrett. Well, Senator, you know, both the case you 
are talking about, Lilly Ledbetter, both that case and Epic 
Systems are precedents of the Court, and as I have said a 
number of times during the hearing, I cannot really comment or 
grade thumbs up or thumbs down, as Justice Kagan put it, prior 
precedents or say how I would have decided them.
    Senator Hirono. They are--Judge Barrett, they are 
precedents of the Court that do not take into consideration the 
real-world factors at play here. And, in fact, in the case of 
Epic Systems, the Court sided with the corporation as opposed 
to the workers who were trying to remedy a wrong. And in Lilly 
Ledbetter, she was totally out in the cold. So, again, the 
Court did not. So they established precedent all right, but it 
was a precedent that was not based on real-life impacts.
    So, much as you sit here telling me that you would follow 
the law, after all, the law--for example, the Affordable Care 
Act, that law embodies 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 was 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; 
otherwise, why should we pass a law? So the fact that you are 
not able to--I think it is pretty clear--let me rephrase that. 
You do consider Justice Scalia to be your mentor, that your 
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, her approach was to look at the 
real-world impact. Justice Scalia's was not.
    So, I would 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 Justices would 
mean that 23 million people could lose their healthcare. That 
133 million Americans with pre-existing conditions could lose 
critical protections for their healthcare, and more than 7 
million Americans who have tested positive for COVID-19 would 
probably be added to the group of people with pre-existing 
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-
related causes. That Americans could lose coverage for 
essential health benefits like prescription drugs and mental 
healthcare. That young adults would no longer be able to stay 
on their 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 upholding the Affordable Care Act, if that was something 
that he followed, he would have struck down the Affordable Care 
Act. That is your--if he followed your criticism of him in 
sustaining the Affordable Care Act, he would have struck it 
down. So I would conclude that your approach is, in fact, not 
like that of Justice Ginsburg who did care about 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 you have already established that you 
made no such commitments. But, clearly, that is why this whole 
process is occurring, so that you can be sitting on that Court 
in time to hear the Affordable Care Act by the Supreme Court on 
November 10th.
    So, one of the people who will be impacted is Elizabeth 
from Texas. She moved to Texas for a job and thought that she 
would have a stable income and healthcare coverage. And all 
that changed when her hours decreased and she lost her health 
insurance. Because she could not afford health insurance, she 
could not get proper treatment for her asthma. She had to 
resort to using friends' expired inhalers and over-the-counter 
remedies. The ACA allowed her to get health insurance again.
    The ACA also protects people with pre-existing 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 
would not be able to afford it. I mean, who can afford $500,000 
a year to keep her going?
    [Poster is displayed.]
    Senator Hirono. And also people like Kimberly.
    [Poster is displayed.]
    Senator Hirono. I talked about her yesterday. The ACA 
enabled her to get a mammogram, which she would not have been 
able to get, and that mammogram revealed that she had breast 
cancer, and she got a mastectomy.
    So, you know, this is--the real-life impacts on people like 
Elizabeth, Jordan, and Kimberly where you say you will follow 
the law, it really 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 be confirmed. November 
10th, you will hear the case. You will be deciding on the 
constitutionality of the Affordable Care Act.
    And, by the way, you noted that the issue in the Affordable 
Care Act was one of--what was it that you said?
    Judge Barrett. Severability?
    Senator Hirono. Severability. But the other issue in the 
Affordable Care Act is the entire constitutionality of the law, 
because the district court--the issue was whether the district 
court in Texas was correct in deeming the entire law 
unconstitutional. So, in fact, we are facing the entire law 
falling by the wayside.
    Let me move on. So you have also been asked a lot of 
questions about whether or not you would overturn Roe v. Wade.
    [Poster is displayed.]
    Senator Hirono. I mean, clearly President Trump expects 
that you would do so because, as he 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, in my opinion, because I am putting pro-life 
Justices on the Court.''
    [Poster is displayed.]
    Senator Hirono. And a number of us have mentioned as far as 
Senator Hawley 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 Hawley made clear that you passed his litmus test, and 
he said, ``I think her record is awfully clear. I think that is 
one where she meets my standard of having evidence in the 
record.'' And, by the way, he had 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 his standard. So 
we usually expect Justices to uphold and apply longstanding 
precedent. So, was the President wrong in concluding that you 
would vote to overturn Roe v. Wade?
    Judge Barrett. Well, Senator, again, I cannot make any 
statement, ``no hints, forecasts, or previews,'' as Justice 
Ginsburg put it, about any case or any precedent. But I will 
repeat what I have 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 do not go to the Court to start 
having a book burning.
    Senator Hirono. I know that you have reiterated that time 
and again, but you know what we are left with are the positions 
that you have already taken. So, the 2006 newspaper ad you 
signed that 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 this 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 where you said the Roe decision, 
quote, ``permitted abortion on demand,'' end quote, after you 
said you had opposed abortion on demand 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 Hawley fully expects you to do 
because you have met his litmus test--you noted stare decisis, 
which is precedent. And you have argued that a Justice's duty 
is to follow the Constitution, which you explain means that she 
should--this is 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 said 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 
the precedent falls by the wayside.
    So, you did indicate that there are a few cases that are 
immunized from overturning because they are--they would not be 
challenged in the first place, i.e., Brown v. Board of 
Education. But Roe is not 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 these laws that limit a 
woman's 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 
courts, 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; two cases involving bans on a 
particular type of procedure, dilation and evacuation, that 
accounts for nearly all second trimester abortions; one case 
involving a requirement that fetal remains be buried or 
cremated; four cases involve laws imposing unnecessary 
requirements on abortion providers like transfer agreements 
with local hospitals; four cases involve so-called reason bans; 
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, you know, 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 pre-nomination, which convinced 
Senator Hawley you met his test.
    This morning, Senator Feinstein asked you a question about 
the Supreme Court's 2015 decision in Obergefell v. Hodges, the 
case in which the Court recognized the constitutional right to 
same-sex marriage. And I was disappointed that you would not 
give a direct answer on whether you agreed with the majority in 
that case or if you instead agreed with your mentor, Justice 
Scalia, that no such right exists in the Constitution.
    So, even though you did not 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 anti-LGBTQ activists 
to suggest that sexual orientation is a choice. It is not. 
Sexual orientation is a key part of a person's identity. That 
sexual orientation is both a normal expression of human 
sexuality and immutable was a key part of the majority's 
opinion in Obergefell, which, by the way, 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 do not think that you used the term ``sexual 
preference'' as just--I do not 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.
    In 1996, Justice Scalia wrote a dissenting opinion in Romer 
v. Evans defending a State's ability to openly discriminate 
against the LGBTQ community.
    In 2003, Justice Scalia wrote a dissenting opinion in 
Lawrence v. Texas defending a State's right to criminally 
prosecute someone for same-sex sexual activity.
    Ten years later, in U.S. v. Windsor, Justice Scalia wrote 
another dissenting opinion, this time defending the Federal 
Government's right to deny Federal recognition of same-sex 
marriages.
    And, of course, 2 years after that, in Obergefell, Justice 
Scalia wrote yet another dissent, and this time he argued that 
there was no constitutional right to same-sex marriage.
    So, under Justice Scalia's judicial philosophy, which you 
have told us is your own, States could openly discriminate 
against the LGBTQ community, same-sex couples could be denied 
the right to get married, and they could actually be thrown in 
jail if they engaged in sexual intercourse.
    There are an estimated 11 million adults who identify as 
LGBTQ living in this country since Obergefell was decided in 
2015. Approximately 293,000 same-sex couples have gotten 
married, and many of these people are rightly afraid that if 
you are confirmed, you would join with other conservative 
members of the Court to roll back everything the LGBTQ 
community has gained over the past two decades and push them 
back into the closet.
    Now, two sitting Justices are already calling for 
Obergefell to be narrowed, if not outright overturned. Just 
last week, Justices Thomas and Alito issued a statement 
concurring with the Court's decision to deny cert in Davis v. 
Ermold, a case involving a former Kentucky county clerk who 
refused to issue marriage certificates to same-sex couples. 
They accused the Court of--and this is Justices Alito and 
Thomas, they accused the Court of, quote ``read[ing] a right to 
same-sex marriage into the Fourteenth Amendment even though 
that right is found nowhere in the text.'' And these two 
Justices signaled that Obergefell is ``a problem that only [the 
Court] can fix.''
    So, coupled with your use of the term ``sexual 
preference,'' coupled with your view on precedents and that a 
Justice's view or her own analysis of the constitutionality 
should overtake or overcome precedents if it is in conflict, so 
this is why so many people in the LGBTQ community are so 
concerned that you would, in fact, join the signaling that 
these two Justices have already put out there, that Obergefell 
will fall by the wayside.
    Thank you, Mr. Chairman.
    Chairman Graham. Thank you. Senator Ernst.
    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?
    Judge Barrett. Thank you, Senator Ernst. I would like to 
just make a quick follow-on to some of Senator Hirono's 
comments.
    One, you know, I have said a number of times during the 
hearing that I cannot 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 could not 
opine on whether Obergefell was rightly decided or not, I was 
certainly not indicating disagreement with it. The point of not 
answering was to simply say, it is inappropriate for me to say 
a response.
    And the second point was to say that I certainly did not 
mean and, you know, 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 
Obergefell's holding with respect to same-sex marriage.
    Senator Ernst. Thank you for that. I appreciate the 
clarification, and it goes back to the discussion that you had 
with Senator Sasse on the black robes. When you put that robe 
on, you are neutral. Correct?
    Judge Barrett. Yes.
    Senator Ernst. 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 
childcare options.
    There were supports 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, 
liability protections for our schools and healthcare 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--of course, our greatest sympathies to those that have been 
impacted all across the United States.
    So, Mr. Chairman, I would like to enter into the record--
there are three letters here for the Committee and an op-ed: a 
letter of support from 48 Christian women scholars; the second 
is a letter from a group of governors all across the country, 
including our own Iowa's Governor Kim Reynolds, strongly 
supporting the nomination of Judge Barrett; the third is a 
record letter from Traci Lovitt, who was with Judge Barrett 
while they both served on the SCOTUS Clerk Class of 1998; and 
then, there is also an editorial by Derek Muller, a professor 
of law at the University of Iowa College of Law that appeared 
in the Gazette of Cedar Rapids, Iowa. And this professor had 
Judge Barrett as his evidence professor 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.
    Chairman Graham. Without objection.
    [The information appears as submissions for the record.]
    Senator Ernst. Thank you.
    And, Judge Barrett, I am pro-life. I am pro-life, and I see 
that, judged by your faith and as has been aptly pointed out 
many times over by our colleagues across the aisle, that you 
are pro-life. But once again, can we reiterate your stance as a 
judge?
    Judge Barrett. So as a judge, my personal moral beliefs, 
which I have not, that I can think of, I am not expressing them 
publicly right now because now that I am a judge I cannot 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.
    Senator Ernst. And I know that you consider yourself to be 
an originalist, as you discussed earlier with Senator Sasse, 
and it seems that adhering to the originalist view would 
naturally lead a judge to carry out her constitutional duty of 
impartiality when applying the law, and adhering to this 
philosophy as a judge takes real courage, and 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 I 
would 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 want 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 originalist who loves the Constitution. She is a jurist who 
rightly leaves politics to politicians and legislating to 
legislators.''
    And I will quote further, ``Quite apart from whatever 
policy views she may have on the matter, Judge Barrett reasons 
to a proper result in each case before her. As a Federal 
appellate 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 v. 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 Court's Hill decision 
influenced your reasoning of the case?
    Judge Barrett. Yes. I was on a panel. There was a challenge 
to a bubble zone ordinance, which essentially means it was--how 
to describe it--it limited where abortion protestors could go 
to do sidewalk counseling or leafleting were the things that 
they identified as the activities they desired to undertake and 
the expression of speech outside of the abortion clinic.
    The Supreme Court has a case called Hill v. 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. And so our panel, you know, we are bound by 
that precedent. Our panel applied that precedent.
    And so, as you say, 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.
    Senator Ernst. Absolutely, and thank you for that 
clarification. And I think it was important to point that out 
because in that case using precedent it did favor that abortion 
clinic. Is that correct?
    Judge Barrett. That is correct.
    Senator Ernst. Thank you very much. So I would like to 
submit this for the record. Thank you.
    Now, turning to a topic of agency rulemaking, really a sexy 
topic.
    [Laughter.]
    Senator Ernst. Not something that we have--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 in the 
farm fields over in Clinton County.
    But Congress is not the only body capable of overstep. 
Executive agencies can be just as guilty as the--of this, as we 
have 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 v. Army Corps 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.
    I am very supportive of a less expansive definition of 
WOTUS and am encouraged by how you approached this decision. 
Farmers in Iowa are also encouraged by this development. I 
believed then as I do now that the Obama administration's Clean 
Water Rule, or the WOTUS Rule, was unconstitutional.
    But I also want to talk to you about agency rulemaking that 
I believe was constitutional, which is illustrated in a case 
that the Tenth Circuit Court has recently ruled on, 
specifically, Renewable Fuels Association v. EPA. At issue in 
this case were three exemptions the EPA granted to oil 
companies allowing them to avoid their obligations to blend 
renewable fuel under the Clean Air Act's 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's exemptions and thus 
had standing to sue. The court also found that the EPA exceeded 
its statutory authority in granting those petitions because the 
agency may only extend previously existing waivers.
    In the case of these three refiners, there was nothing to 
extend because they had let their exemptions lapse. In other 
words, the three refineries had not received continuously 
extended exemptions in the years preceding their petitions as 
required by the statute.
    However, in the wake of this Tenth Circuit decision, small 
refineries flooded 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 chain of continuously extended 
exemptions. These oil companies have also appealed to the Tenth 
Circuit decision to--or, the Tenth Circuit decision to the 
Supreme Court.
    So, while I am 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 was not following the law. They took the law that 
Congress passed, they twisted it and interpreted it for the 
benefit of oil producers, and that harmed our Iowa farmers.
    I know, again, you cannot 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?
    Judge Barrett. Well, I think that the court's rule in 
reviewing the lawfulness of agency action it is largely 
governed by the Administrative Procedure Act, which governs the 
way that agencies can do their business and outlines what their 
authority can be.
    There is also a document called Chevron, which is named 
after a case, and many times if we are talking about a Chevron 
issue we are talking about an issue of statutory 
interpretation. It sounds like that is mostly what you are 
thinking of.
    Senator Ernst. Mm-hmm.
    Judge Barrett. And an agency--you know, 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 you 
have 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 a court to say that that 
action, you know, was in conflict with the statute and, 
therefore, illegal.
    Senator Ernst. And what happens then if there is an actual 
question on the intent of the law?
    Judge Barrett. Well, a statute in this context, in a 
context of a Chevron-type challenge to agencies--an agency's 
interpretation of it, you would interpret the statute in the 
same way that you would interpret any other statute.
    So, as I was talking with Senator Sasse about earlier, my 
own approach to it would be textualism. And so in my approach 
to language, the intent of the statute is best expressed 
through the words, so looking at what the words would 
communicate to a skilled user of the language.
    Senator Ernst. Very good. Well, I appreciate it. We do have 
a little bit of time remaining. So, again, I just 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.
    Chairman Graham. Thank you, Senator Ernst.
    Judge, are you okay to do two more?
    Judge Barrett. Sure.
    Chairman Graham. So, Senator Booker, Senator Crapo. Then we 
will take a 20-minute or so break to grab a bite to eat and 
finish up. Senator Booker.
    Senator Booker. Thank you, Mr. Chairman. Your Honor.
    Judge Barrett. Hi, Senator.
    Senator Booker. 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 we have just 
never seen before in the history of the United States.
    We are 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 voted 
nationally.
    The only other time a Supreme Court nomination hearing 
happened this close to an election was, as you probably know, 
was under President Lincoln, who declined to offer a nomination 
before the election. But we are in the midst of an ongoing 
election right now at a very contentious time in our democracy.
    It is probably not normal also 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 4 years ago that we should not proceed to 
fill a vacancy that opened 269 days before an election.
    In the words of some of my colleagues, including the 
Chairman, was to use our words against us, we would not do 
exactly what we are doing right now.
    It is also not normal, clearly, because we are in the 
middle of a pandemic, and we have tens of thousands of new 
COVID infections every single day, widespread food insecurity 
like we have not seen these kind of food lines in my lifetime, 
I do not think.
    People across our 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 that are being allowed to 
go forward are not the issues of 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 I have never seen something like this in my lifetime, 
that his former Cabinet members, his former chief of staff, all 
talk about the danger he represents to the country we all love.
    In fact, probably one of the most respected person on both 
sides of the aisle, General Mattis, who served as our Secretary 
of Defense, went as far as to say--a man who has been very 
reserved in his comments--that Donald Trump is a danger to our 
democracy.
    We are 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 as well as the 
independence of the Court by saying he would only nominate 
Justices who would tear down Roe v. Wade, who would overturn 
ACA.
    And it is not normal, amidst this all, and, again, 
something that I find hard to believe that we are talking about 
is that we have a President who cannot commit himself to the 
peaceful transfer of power.
    Now, in 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 
of your fellow faculty members from Notre Dame wrote an open 
letter calling on you, for the sake of our democracy--they did 
not speak to whether you are right or left or your judicial 
philosophy or qualifications--they wrote an impassioned letter 
for the sake of our democracy.
    They publicly issued a statement asking that your 
nomination, that you pull yourself--withdraw from this 
nomination process and have it be halted until after the 
November election.
    This is not normal. And, again, the overwhelming majority 
of Americans want to wait. But my colleagues here are not 
listening. And so I am going to ask you some questions that if 
you had told me 5 years ago that would be questions asked at a 
Supreme Court nomination hearing I would have thought they 
would not be possible.
    But, unfortunately, I think they are necessary to ask you, 
and I hope that you will give me direct answers.
    The first one you have already spoken toward issues of 
racism and how you deplore it. But I want to just ask you very 
simply, and I imagine you will give me a very short resolute 
answer, but you condemn white supremacy. Correct?
    Judge Barrett. Yes.
    Senator Booker. Thank you. I am glad to see that you said 
that. I wish our President would say that so resolutely 
unequivocally as well.
    But we are at a time that Americans are literally fearful 
because their President cannot do that in the resolute manner 
in which you did. I am 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 resolutely, to the 
peaceful transfer of power?
    Judge Barrett. 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 so to the extent that this is a political controversy 
right now, as a judge I want to stay out of it and I do not 
want to express a view on.
    Senator Booker. So, Judge, I appreciate what you have said 
about respecting our Founding Fathers, about originalism. It is 
remarkable that we are at a place right now that this is 
becoming a question and a topic.
    But I am 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,'' I am just asking, should a President commit 
themselves, like our Founding Fathers, I think had a clear 
intention, like the grace that George Washington showed to the 
peaceful transfer of power. Is that something that Presidents 
should be able to do?
    Judge Barrett. 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 
have not had the situations that have arisen in so many other 
countries where there have been--where those issues have been 
present.
    Senator Booker. 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?
    Judge Barrett. 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, previews, or 
forecasts of how I would resolve the case, that is not one that 
I can answer.
    Senator Booker. 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 he is in office, 
potentially, to foreign entities, do you think he has a 
responsibility to disclose who his lenders are, especially 
given the Emoluments Clause?
    Judge Barrett. Well, Senator, there is litigation about the 
Emoluments Clause. I think it was in the Fourth Circuit. I do 
not know where it stands. But that, clearly, is an issue that 
is being litigated and one present in courts is not one on 
which I can offer an opinion.
    Senator Booker. Thank you. I think it is disturbing that we 
are 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.
    Presidents should reveal what their debts are, especially 
if they are to foreign nations. Presidents should not be able 
to pardon themselves for future crimes. Presidents should 
condemn white supremacy. Presidents should commit themselves to 
the peaceful transfer of power.
    Judge Barrett, you have seen a lot of my colleagues and I 
put up pictures of people in this room and stories we have 
told, and I have appreciated the way you have 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 the 
statements and actions of my Republican colleagues, the 
Republican Party platform, and the President who nominated you, 
and even some of your own words which have been read by my 
previous colleagues around the Affordable Care Act.
    President Trump, who nominated you for this vacancy, has 
not only 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 
Bush's appointee, John Roberts, on Obamacare.''
    The President has tried to do this legislatively. He has 
tried to do it administratively. He has failed time and time 
again. But he has promised over and over again to tear down the 
Affordable Care Act.
    Meanwhile, all of my Republican colleagues on this 
Committee except for one has voted to overturn 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 attorneys general who sued to overturn the 
Affordable Care Act.
    You, yourself, said--now I will quote you--that ``Chief 
Justice Roberts pushed the Affordable Care Act beyond its 
plausible meaning to save the statute.'' The same Chief Justice 
Roberts that Trump implied did not do the right thing.
    So, Judge Barrett, you have said that 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 you would put 
your family members in the shoes of litigants on both sides.
    Given all that you have heard, said over and over again, 
about the intentions to tear away the Affordable Care Act, to 
end the Affordable Care Act, given what you have heard about 
the people who rely on it, given the commitment you know that 
President Trump has to have said explicitly to only appoint 
judges who would overturn the ACA, 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, as in their 
pictures, is it unreasonable for them to fear that the ACA 
would be overturned if you are confirmed to the Court?
    Judge Barrett. Well, Senator, I want to stress to you, 
Senator Booker, as I have stressed to some of your colleagues 
today, that I am my own person.
    I am independent under Article III and, you know, I do not 
take orders from the executive branch or the legislative branch 
or the judges.
    Senator Booker. I understand that. I guess--I mean, can I 
restate my question because I do not think you are 
understanding it?
    Judge Barrett. Sure.
    Senator Booker. I am just asking, as an act of empathy, can 
you understand the fears that are exhibited by the people we 
put up? I do not--the two people I put up, Michelle and 
Merritt, I do not know what their political party is.
    I do not know if they are going to vote for me. I am on the 
ballot. I do not know. I just know that they were people that 
wanted their voices to be heard because they are afraid right 
now and what your nomination represents. All I am asking is, 
can you empathize with that? Can you understand that?
    Judge Barrett. Senator, I can certainly empathize with 
people who are struggling. I can empathize with people who lack 
healthcare.
    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 access to basic things like antibiotics, 
and it just made me appreciate the fact that we had access to 
healthcare.
    So I can certainly empathize with all of that.
    And with respect to the ACA, you know, should I be 
confirmed and, as I have said, I would consider the issue of 
recusal of threshold question of law and whether to hear that 
case, but should I be confirmed and should I sit and hear the 
case, as I assured you, I would consider all the arguments on 
both sides.
    And one of the important issues in that case is whether, 
even if the mandate has become unconstitutional since it was 
zeroed out, whether it would be consistent with the will of 
Congress for the whole Act to fall--it is a statutory question, 
not a constitutional one--or whether the mandate could be 
severed out and the rest of the Act stand.
    And so the task of every Justice who hears this case will 
be to look at the structure of the statute and look at its text 
to determine whether it was the will of Congress when they 
passed the ACA.
    Senator Booker. And, Judge, I apologize, especially after 
the good behavior that was noted that we should not be talking 
over each other. My time is----
    Judge Barrett. No, that is okay, Senator.
    Senator Booker. My time is running quickly.
    Judge Barrett. Sure.
    Senator Booker. I guess I just--as a guy who looks at 
Justices, I was just asking you to express that you understand 
the fear that it is in America right now, because you heard 
story after story of people who do not know if they are going 
to be able to afford their healthcare, who do not know if they 
will be denied insurance coverage.
    And I am going to move on because of the short time. But I 
was just asking you is, can you understand the fear, given a 
President that has said that they will put a Justice on that 
will tear down the Affordable Care Act, thus taking away 
healthcare for millions of Americans. There is fear in our 
country right now.
    But I want to move now to earlier what Senator Durbin and 
you discussed. They asked about your views on racism and the 
role of courts in addressing racial justice.
    I was troubled that you said that racial justice and 
equality, and I will 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 Government's own data, and this is--I think you 
and I referenced this in our private conversation, which I 
appreciate--you said you were familiar with a lot of the data 
about the discrimination within our criminal justice system.
    For example, the U.S. Sentencing Commission shows that 
prosecutors are more--this is the U.S. Sentencing Commission--
said that prosecutors are more likely to charge Black 
defendants with offenses that carry harsh mandatory minimum 
sentences than similarly situated whites. Are you familiar with 
that, the U.S. Sentencing Commission?
    Judge Barrett. I am not familiar with that particular----
    Senator Booker. Does that surprise you?
    Judge Barrett. I mean, I do not know, Senator Booker. That 
seems an odd thing for me to express an opinion on. As you----
    Senator Booker. I am not asking you. These are facts. These 
are just facts.
    Judge Barrett. And as you and I--I am not familiar with 
that study. As you and I discussed, I am aware that there is 
evidence and that there have been studies of systemic racism or 
implicit bias in the justice system. So I am aware of that 
issue. I was not aware----
    Senator Booker. You are aware of evidence that there is 
implicit racial bias?
    Judge Barrett. I am aware that there have been studies 
showing that implicit bias is present in many contexts 
including in the criminal justice system.
    Senator Booker. Okay. I am just going to read some of these 
other statistics because I think they are really important, and 
this is independent data from the U.S. Sentencing Commission 
and Black defendants, again, are compared with similarly 
situated white defendants, were subject to three-strikes-
sentencing enhancement at a significant higher rate which, on 
average, added 10 years to sentences. You are not familiar with 
that study?
    Judge Barrett. I am not familiar with that study.
    Senator Booker. Do such cases come before the Seventh 
Circuit?
    Judge Barrett. The three-strikes cases or----
    Senator Booker. Yes.
    Judge Barrett. Are you talking about the three-strikes--the 
Prison Litigation Reform Act cases where they are struck out or 
are you talking about----
    Senator Booker. I am asking cases in the criminal justice 
system that relate to racial bias. Do they come before the 
court?
    Judge Barrett. So, certainly, we have discrimination cases. 
Certainly, there are 1983 cases, or Title VII cases.
    Senator Booker. I would imagine so, and in those--in your 
research for those cases you familiarize yourself with a lot of 
the data on the discrimination within the system?
    Judge Barrett. That--you know, we familiarize ourselves 
with the arguments the parties make and the information that 
they put in the record, and in some cases I have had parties 
submit or it is submitted in the district court technically and 
then made part of the record.
    Senator Booker. And so I just want to be clear. Do you 
believe that there is in fact implicit racial bias in the 
criminal justice system?
    Judge Barrett. Well----
    Senator Booker. It is just a yes-or-no question. Do you 
believe in fact that there is implicit racial bias in the 
criminal justice system?
    Judge Barrett. Senator, it would be hard to imagine a 
system, a criminal justice system, as big as ours not having 
any implicit bias in it.
    Senator Booker. So, is that a ``yes'' ?
    Judge Barrett. Senator, yes, I think that in our large 
criminal justice system it would be inconceivable that there 
was not some implicit bias.
    Senator Booker. Okay. Over the last 2 years, about 121 of 
President Trump's judicial nominees in the Federal court have 
said unequivocally that there is implicit racial bias within 
the justice system, quite clearly.
    I would like to turn to an opinion you wrote last year 
about race discrimination, Smith v. Illinois Department of 
Transportation.
    The case involved an African-American traffic patrol 
officer who had been fired from the Illinois Department of 
Transportation. This employee claimed that he had been 
subjected 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 I am going to 
quote you now--``The N-word is an egregious racial epithet.'' 
But you went on to insist that the employee could not, quote, 
``win simply by proving that the N-word was uttered at them'' 
and that he failed to show that his supervisor's use of the N-
word against him, quote, ``altered the conditions of his 
employment and created a hostile or abusive working 
environment.''
    And you have said that even based on his own subjective 
experience this Black employee had, quote, ``no evidence that 
his supervisors were lashing out at him because he was Black.''
    I am very surprised to have to make this point at all, but 
even a staunch conservative like Justice Kavanaugh in my 
questioning of him spoke to the obvious harm here in a way that 
you do not seem to. He wrote in a Court of Appeals case that, 
quote, ``Being called the N-word by a supervisor suffices by 
itself to establish a racially hostile work environment.'' You 
disagreed with that.
    Why do you believe that the law recognizes the harm that is 
afflicted on a Black person in this country when they are 
called that word by their work supervisor, or by anyone, 
really, for that matter, and all the history dredged up in that 
word, centuries of harm, why do you believe differently than 
Justice Kavanaugh?
    Judge Barrett. Well, Senator Booker, that opinion does not 
take a position different than Justice Kavanaugh. It 
expressly--and it was written very carefully to leave open the 
possibility that one use of that word would be sufficient to 
make out a hostile work environment claim.
    The problem was that in that case the evidence that the 
plaintiff had relied on to establish the hostile work 
environment involved other--you know, 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 did not argue under clear Supreme Court 
precedent. I did not make up the objective subject development.
    Under clear Supreme Court precedent both are required, and 
he did not say that it altered the terms of--that is not how he 
pled or made his case and it was a unanimous panel decision.
    Senator Booker. And forgive me if I am reading this case 
wrong. But you are saying to me he was not claiming that he had 
a hostile work environment and that it is in the fact pattern 
that this supervisor called him the N-word, and that does not 
constitute a hostile work environment in the way that Justice 
Kavanaugh said clearly that it does?
    Judge Barrett. No, Senator. I think you are 
mischaracterizing what I said, with all respect. 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 down.
    He was hired to be a safety driver 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 did not 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 had 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.
    Senator Booker. I am going to turn to the AutoZone case you 
discussed earlier with Senator Feinstein. The initial panel of 
three judges that examined the case ruled against Kevin 
Stuckey.
    You were not a part of that initial panel but you did have 
an opportunity to vote on whether to hear the case before the 
entire court.
    You had an opportunity to affirm the bedrock principle 
enshrined in Brown v. Board of Education about separate but 
equal, really to say that separate is inherently unequal.
    But you voted no. You did not think the full court needed 
to examine this deliberate 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 by its very nature has an adverse effect on the 
people subjected to it.''
    On one of the central teachings of Brown v. Board of 
Education, which I know you are familiar with, is that idea of 
separate being inherently unequal.
    Why did you think that the separate but equal facilities 
were lawful or why didn't you see this as a practice that was 
worthy of closer scrutiny?
    Judge Barrett. Senator, as I said earlier to Senator 
Feinstein, I did not make a merits decision on that case and I 
was not on the initial panel. The calculation of whether to 
take the case en banc is different than a merits determination.
    So, I was not reaching any decision about whether Title VII 
applied to that situation or not. Federal Rule of Appellate 
Procedure, I think it is 35 that governs en banc proceedings, 
sets out standards and this case did not create an intra-
circuit conflict or an inter-circuit conflict. And so, I did 
not think it met Federal--all my vote means is that I did not 
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.
    Senator Booker. Right. But, I mean, three judges disagreed 
with you and these were judges appointed by Republican and 
Democrat Presidents. They saw the case about separate but equal 
really compelling. They thought the issue deserved closer 
scrutiny, and you had an opportunity to join them but you did 
not. You referred earlier to the problem of implicit racial 
bias in our system.
    This idea that despite the color of our skin people can get 
a hearing. People can get justice. And this denial seems to me 
that you disagree with the prioritization, at least, of your 
three colleagues.
    Judge Barrett. Senator, eight of my colleagues chose not to 
take the case en banc, and the en banc process is a different 
one than 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 had to participate in it and 
read the briefs and hear the arguments. And I think----
    Senator Booker. And so the three Justices were wrong? Then 
you disagree with your colleagues?
    Judge Barrett. The three judges who dissented, my three 
colleagues whom I respect very much, thought that it met the 
standard for en banc review. That is a different question than 
a merits, and so I did disagree with them about whether to take 
it en banc.
    So, I was within the group of eight colleagues that decided 
that maybe that would be an issue we could take up in the 
future but not to disturb the panel decision then.
    Senator Booker. Thank you.
    Judge Barrett. But that is not a merits determination.
    Senator Booker. Thank you, your Honor. Thank you.
    Moving quickly. Judge Barrett, 5 years ago, the Supreme 
Court ruled that the Constitution protects the rights of same-
sex couples to marry. This was the Obergefell case, which has 
been discussed today.
    The Court declared the Constitution grants LGBTQ Americans 
equal dignity in the eyes of the law. Hundreds of thousands of 
couples have built their lives on this decision. I have married 
some of them myself.
    On that day 5 years ago, the Court fulfilled really that 
ideal of equal justice under law. And yet, now that same-sex 
marriage is legal, we have seen efforts to try to undermine 
that decision.
    Justice Ginsburg wrote about legal rules that would, quote, 
``create two kinds of marriage, full marriage and skim milk 
marriage.'' I firmly believe that our laws should not allow 
discrimination against people on the basis of who they are. I 
have a number of questions on this topic, if I can get through 
them.
    But I wanted to offer you a further opportunity to address 
the issue that I do not 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?
    Judge Barrett. Senator, I really, in using that word, did 
not mean to imply that I think that, you know, that it is a 
matter--not a matter of--that it is not an immutable 
characteristic or that it is solely a matter of preference. I 
honestly did not mean any offense or to make any statement by 
that.
    Senator Booker. But what you just said you understand about 
that immutable characteristic. In other words, that one's 
sexuality is not a preference, it is who they are. Is that what 
you are saying?
    Judge Barrett. Senator, I am saying I was not trying to 
make any comment on it. I fully respect all the rights of the 
LGBT community. Obergefell is an important precedent of the 
Court. I reject any kind of discrimination on any sort of 
basis.
    Senator Booker. So you would say Obergefell is the 
decision. But what about your two colleagues--excuse me, 
forgive me--what about Alito and Thomas, who have said that the 
Court has created a problem that only it can fix. They, 
clearly, do not see that as a precedent worth following. You 
just said Obergefell is a precedent.
    Judge Barrett. I said Obergefell--of course, Obergefell is 
a precedent. It is an important precedent. As you pointed out, 
there are reliance interests now in Obergefell.
    As to why Justices Alito and Thomas have called for its 
overruling in the recent opinion that they issued, I cannot 
really speak to their thinking on----
    Senator Booker. They called it a problem. Do you know what 
they are referring to?
    Judge Barrett. Well, Senator Booker, I do not know what 
Justices Thomas and Alito were thinking, that you would have to 
ask them.
    Senator Booker. So we are now seeing cases where gay and 
lesbian Americans are being denied equal access to Social 
Security survivors' benefits. One same-sex couple in Arizona 
was together for 43 years, got married.
    But one of them died 6 months later and now the surviving 
spouse is being denied benefits because they were not married 
long enough after 43 years together in love. Does this violate 
the rule of equal treatment that the Supreme Court has laid 
down?
    Judge Barrett. Well, in Obergefell? Could you repeat the 
facts of this?
    Senator Booker. They were--they were together for 43 years. 
The law changed and allowed them to marry. They married. One 
died soon after, and they are being denied survivor benefits 
because they were not married long enough because the law 
wrongfully denied them that equality.
    Judge Barrett. So that would be a legal question that would 
have to come up and be decided the context of a real case. I 
mean, it is plain that Obergefell recognizes the full right of 
same-sex couples to marry.
    But the question of what are the implications of that for 
benefits would be something that would come up with the--before 
a court later.
    Senator Booker. So but there are some precedents, and maybe 
I can ask a different question.
    Judge Barrett. Sure.
    Senator Booker. Can a hairdresser refuse to serve an 
interracial couple's wedding because they disapprove of 
interracial marriages?
    Judge Barrett. Well, Loving v. Virginia follows directly 
from Brown, and it makes unconstitutional any attempt to 
prohibit or forbid interracial marriage.
    Senator Booker. Could they refuse to serve a Black couple's 
wedding?
    Judge Barrett. Could a baker or a florist refuse to--Title 
VII prohibits any sort of discrimination on the basis of race 
by places of public accommodation.
    Senator Booker. How about an interfaith wedding?
    Judge Barrett. Well, Senator, I feel like you are taking me 
down a road of hypotheticals that is going to get me into 
trouble here because, as you know, I cannot opine on how cases 
would be resolved, and I have said that whether they are easy 
questions or hard questions, I cannot do that.
    Senator Booker. So I am not the lawyer that you are, but 
you seem to honor the precedents that are enough to protect 
discrimination against African Americans, interracial couples. 
But you stop on saying that unequivocally about people stopping 
on religious discrimination or against a Muslim couple's 
wedding or interfaith wedding?
    Judge Barrett. Well, Senator, I think, you know, what Title 
VII says, as I am sure you know, is Title VII prohibits 
discrimination on the basis of race, on the basis of sex.
    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 VII, that would be a case that would have 
to come up, you know, as I discussed with Senator Sasse, with 
real litigants, litigated on a full record. So you are asking a 
series of hypotheticals.
    Senator Booker. And so, I am assuming that you will not 
respond, or for the same reasons you have uttered before, you 
will not respond about whether a florist can refuse to serve a 
same-sex couple.
    Judge Barrett. Well, it sounds like you are on your way to 
talking about Masterpiece Cakeshop, and some of the cases that 
are very hotly contested and winding their way through the 
courts, since I want to make sure that I am not in a position 
where I am eliciting any views that would bear on litigation 
that is very active.
    Senator Booker. Well, and I guess you maybe can understand 
if we go back to the question that both I and Senator Hirono 
asked you about what you said, you did not mean to offend about 
whether it is a choice or not. These are about 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 Sonnessa and Jan 
Moore.
    [Poster is displayed.]
    Senator Booker. They have been together for 51 years. They 
have raised three children. At last count, and I think that 
that is a good way of putting it, they have 18 grandchildren 
and 20 great grandchildren, and you know how families are.
    Judge Barrett. Mm-hmm.
    Senator Booker. But for a long time they had to keep their 
relationship and their love a secret. Finally, once same-sex 
marriage--once same-sex marriage became legal they got married, 
and thanks to the Supreme Court's decision in Obergefell they 
can now enjoy their full rights.
    Judge Barrett, you are asking the United States Senate to 
agree to have you replace Justice Ginsburg, which would tilt 
the balance of the Court further to the right.
    Remember that it was Justice Ginsburg who warned against 
full marriage for some couples and skim milk marriage for 
others. Like so many couples in my State of New Jersey and 
around the country, Emily, Jan are worried about what might 
happen if the Supreme Court starts to peel back some of their 
hard-fought rights.
    They believe that their love should be valued by their 
government and equally as the love of any other people, and 
they believe a lot of the rights that they now enjoy, which 
were denied in the past to African Americans even, to 
interracial couples, they believe that they should be able to 
preserve them.
    And so I--my time has expired. You have been very generous, 
as has the Chairman in allowing me to go over. I am grateful to 
have the opportunity to talk with you more tomorrow.
    Judge Barrett. Thank you, Senator Booker.
    Senator Booker. Thank you very much.
    Chairman Graham. Thank you, Senator Booker. Senator Crapo, 
then we'll take a break for supper. Thanks.
    Senator Crapo. Thank you, Mr. Chairman. And we're four away 
from the finish today.
    [Laughter.]
    Senator Crapo. Before I begin, I do have a couple of 
letters I would like to submit for the record: one from the 
speaker of the Idaho House, Scott Bedke, in support of Judge 
Barrett's nomination, and the other from the National Shooting 
Sports Foundation, also in support of the nomination, Mr. 
Chairman.
    Chairman Graham. Without objection.
    [The information appears as submissions for the record.]
    Senator Crapo. Thank you.
    And, Judge Barrett, I am going to, well, I will get to some 
new material, but a lot of what I do at the beginning will be 
going over things you have already said, and you must think you 
have said them way too, had to say them way too many times.
    I am going to just be sure we get some things nailed down 
once more. Before I do that, though, there has been a lot said 
today that really needs to be responded to. This won't be a 
question to you, these first two. I am just going to quickly 
respond to a couple of them.
    The first was one of my colleagues, Senator Whitehouse, 
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, but yes, there is dark money in politics, and I think 
that we should get it out. What this means is that money where 
you don't know who the real donors are behind the entity that 
is making the expenditure. Fortunately, we are getting a lot of 
that out, but there is still a lot there.
    The impression, though, that was left was that this dark 
money is all on one side. The reality is, if you look at 
opensecrets.org, this data is from 2016, but I have seen data 
even later into 2018 and it is the same kind of statistics, and 
that is that, really, the significant majority of the dark 
money is being spent in favor of the Democratic side, rather 
than the Republican side. Of the top 20 organizations and 
individuals that they identified who contribute to super PACs 
who then utilized the money in the way that was talked about, 
14 of them give exclusively to Democrats. Of the top 10 on that 
list, only two give to Republicans. And the totals, by the way, 
were $422 million in this report going to Democrats and $189 
million going to Republicans. So, yes, there is money in the 
system which we can't identify.
    A lot of this money, by the way, is going into ads against 
you, Judge Barrett, but we can't get it all out yet. I think we 
ought to get it out, but let's not try to create the impression 
that this is just some one-sided circumstance that is happening 
in the country.
    The other thing I want to go over first before I get into 
my questions is the same thing I went over yesterday, because 
the allegations have been made again, and again, and again, 
that 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 
vacancy in an election year.
    Some people count these things differently. There is a 
statistic that I will use that will count all present--all 
vacancies that have happened, whether the vacancy occurred in 
the election year or whether it just didn't get resolved until 
the election year. But it doesn't matter whether you just take 
the ones that arose in the election year or if you take all of 
them that were resolved in the election year, the precedent is 
the same, it is overwhelming: In every single case, the sitting 
President made a nomination. Every case.
    In those cases in which the Senate was of the same party as 
the President, I am going to use the one for all of the 
nominations that actually were 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 9 of those cases, the party that was not 
the party of the President declined to move forward until the 
next President was elected.
    Now, that is the precedent of the Senate. That is what 
happened in 2016 when the Senate was of a different party than 
the President and it is what is happening now when the Senate 
is the party of the President. And those are the facts and that 
is the precedent.
    In terms of the timing, I went through the timing then as 
well, I think your hearing started, Judge Barrett, on the 
sixteenth day from the day you were nominated. There were a 
bunch of members of the Supreme Court whose nominations 
hearings started sooner than that, including Ruth Bader 
Ginsburg.
    And so, the fact is that normal procedures, appropriate 
timing, and appropriate policy and precedent is being followed 
here as we move forward.
    Now, having made those points once again, I will, like I 
said, I will get into some new questions for you, but I am 
going to go over a lot of things that you have already talked 
about, because I really think it is important that we just make 
it as clear as possible.
    You have talked about originalism and textualism. Is there 
a difference between those two things?
    Judge Barrett. They are the same basic approach, but we use 
originalism mostly to refer to interpreting the constitutional 
text and textualism, we use to refer to interpreting statutory 
text. But they both involve the same principle, which is that 
one comes to the law and interprets it as it would have been 
understood by those at the time of its--either its 
ratification, in the case of the Constitution, or its 
enactment, in the case of a statute, and that the law remains 
the law until it is lawfully changed through democratic 
processes.
    Senator Crapo. All right. Thank you.
    And I assume you would consider yourself both, an 
originalist and a textualist?
    Judge Barrett. I do, Senator Crapo.
    Senator Crapo. And you have written quite a bit about 
precedent and stare decisis. Could you just, once again, tell 
us what that is and maybe you could make a distinction between 
what it means at the appellate level and at the Supreme Court 
level.
    Judge Barrett. Sure. So, there are two kinds of stare 
decisis: there's horizontal stare decisis, which is, say, the 
Supreme Court's obligation to follow its own precedent, and 
then there's vertical stare decisis, which is my obligation 
right now on the Seventh Circuit to follow Supreme Court 
precedent, because it sits above me in the Federal judicial 
hierarchy.
    Precedent, for vertical precedent, there's no question. I 
mean, I can't buck what the Supreme Court does. It, you know, 
sets the precedent and all lower courts must follow it.
    Senator Crapo. Right.
    Judge Barrett. For horizontal precedent, for example, on my 
own court right now in the Seventh Circuit, the court that 
renders a precedent does have the ability to reconsider it 
under certain circumstances, otherwise, errors don't get fixed 
and Plessy v. Ferguson would still be the law of the land.
    Senator Crapo. So, and you will, I am sure, tell me. What 
are the rules there when you do horizontal re-evaluation?
    Judge Barrett. Sure. So, when a court decides whether or 
not to overrule a precedent it considers, first of all, is it 
wrong and how egregiously wrong is it? You know, we can see in 
the Brown v. Board of Education decision, how that factor 
played.
    You also consider reliance interests because, as I said 
before, stare decisis is short for ``stand by the thing decided 
and don't disturb the calm.'' So, courts don't recklessly get 
in the business of just stirring up, you know, disrupting 
people's lives, you know, unless it's the other factors counsel 
in favor of doing it.
    You consider whether the law has developed since the 
precedent in a way that undercuts the foundations of the 
President itself--precedent itself. Same for the facts.
    You also consider whether the precedent that you set has 
proved to be workable for the courts below you that must follow 
it. So, in my case on the Seventh Circuit, that would mean the 
district courts. Have we set out a, an articulation of the law 
in a case that lower courts can actually use?
    Senator Crapo. And so if I, to paraphrase here, if a judge 
in a horizontal situation, either a Supreme Court Justice 
evaluating Supreme Court precedent----
    Judge Barrett. Mm-hmm.
    Senator Crapo [continuing]. Or a circuit court judge 
evaluating the circuit court's precedent, if they felt the 
precedent was wrong, that is not enough.
    Judge Barrett. That is not enough.
    Senator Crapo. And you have to have, then, the reliance and 
the other factors all falling into the right circumstance 
before a decision to actually overrule or overturn a precedent 
is made.
    Judge Barrett. That's true. And this might be a good time, 
Senator Crapo, for me to make one other point about horizontal 
stare decisis doctrine. Earlier, and I can't remember which 
interchange it was, someone was pointing out, you know, that I 
said, stare decisis should have weaker effect in constitutional 
cases. That's actually what the Supreme Court has said. That's 
a well-established principle of stare decisis doctrine, itself.
    The Court has said that it gives super-strong effect to 
precedent in statutory cases because you all can always step in 
and fix any errors the statutory interpretation the Court might 
make, but the Court, itself, has expressly said that it gives 
weaker stare decisis effect in constitutional cases because the 
only way to remedy an error is by constitutional amendment.
    So, I just want to be clear that that is simply a 
restatement of the Court's own doctrine. That wasn't something 
I invented.
    Senator Crapo. All right. I appreciate that.
    And you also mentioned earlier that there are some, I think 
you said, six super-precedents.
    Judge Barrett. Let's see. I can't remember how many are on 
the list, but as I said it's--in constitutional law 
scholarship, there are some precedents that scholars have 
identified as utterly beyond question that no serious person 
ever calls for their overruling.
    Senator Crapo. I think Brown v. Board of Education would be 
one of those?
    Judge Barrett. Marbury v. Madison, which establishes the 
power of judicial review.
    Let's see. The cases, it's probably easier for me to just 
identify what the precedents stand for.
    Senator Crapo. Sure.
    Judge Barrett. So, the power of judicial review; the power 
of the Supreme Court to review judgments from State courts; the 
proposition that the Fourteenth Amendment applies only to State 
action; the incorporation of the Fourth Amendment, and by 
implication, the other bills of right, Bill of Rights--other 
rights in the Bill of Rights against the States.
    So, they are mostly structural, kind of foundational 
principles, you know, and they're just so settled no one 
seriously challenges them anymore.
    Senator Crapo. All right. Thank you. I appreciate that. I 
think that is very helpful.
    And in this hearing, you have been asked about at least 3 
very significant Supreme Court precedents and you have been 
asked whether you were asked to commit to overturn them or 
whether you have even had conversations with the President or 
his staff about them. One, and I just want you to, again, give 
your answer on that, because I want this to be very clear.
    Roe v. Wade: Have you had any conversations with the 
President or with the White House staff, White House counsel, 
anyone, and have you made any commitments about how you would 
rule on any case dealing with that?
    Judge Barrett. I have not, Senator Crapo.
    Senator Crapo. Thank you.
    And the same set of questions with regard to Obergefell?
    Judge Barrett. I've had no conversations with anyone in the 
White House staff about that case, my views of it, how I would 
rule.
    Senator Crapo. All right. And then, finally, the current 
case: California v. Texas?
    Judge Barrett. No conversations at all.
    Senator Crapo. All right. Thank you.
    Now, you also earlier testified that there's a difference 
between judicial decision-making and the process of making a 
judicial decision versus, say, the process you would make as a 
professor when writing an article or what have you.
    Could you just quickly get into that with me?
    Judge Barrett. Sure. So, a professor, when writing law 
review articles or doing academic critique is kind of at a ten-
thousand-foot level, you know, you're not in the trenches like 
a judge is because you are not deciding it in the context of a 
real case with real litigants in front of you, the adversarial 
process where you have people on either side, where you hear 
arguments and you consult with your colleagues and you write 
your opinion.
    And I think one thing that's worth pointing out about the 
judicial process is that I have had the experience of changing 
my mind at various points along the way. I've gone into oral 
argument more than once thinking, you know, I was going to rule 
one way and then oral argument has changed my mind----
    Senator Crapo. Mm-hmm.
    Judge Barrett [continuing]. Or, I've gone into conference 
and my colleagues have changed my mind.
    I've even changed my mind, and this is not uncommon on the 
court, once I started writing an opinion. Judges say, it won't 
write, you know, which means what you thought was right when 
you started writing it, you realize actually didn't really work 
out.
    So, I think that process and the fact that judges keep an 
open mind all the way through is evidence of how the judicial 
process really is unique in our system, and it is a different 
enterprise than academic critique.
    Senator Crapo. Thank you.
    I've been able to observe that a little bit. I clerked on 
the Ninth Circuit Court of Appeals----
    Judge Barrett. That's right. You told me that.
    Senator Crapo [continuing]. And so, I have been able to 
observe that exact process and each of those steps that you 
talked about taking place, and you are right, that is how it 
happens when it is done properly.
    Next, I want to go to one more specific kind of process-
type thing to make sure we all understand it, right, and that 
is recusal. Interestingly, you have been asked by my colleagues 
on the other side to assure that you have made no commitments 
about caselaw.
    But that to give a commitment on recusal, you have said 
that there is a process for recusal, as well, and that you 
would follow that. But could you please lay that out, again, 
once again for us?
    Judge Barrett. Yes. Recusal is a question of law because 28 
U.S.C. 455, the recusal statute, actually obligates a judge to 
recuse in certain cases of either actual bias or apparent bias. 
And there are Supreme Court precedents interpreting the range 
of a judge's obligations under that statute. There are also, 
you know, professional conduct committees to consult, and I 
think collaboration and consultation, as I said before, with 
other Justices is a typical practice, according to Justice 
Ginsburg's description of it. So, it is a legal question that's 
governed by statute and precedent, so it's not one that I can 
make an advanced resolution of.
    Senator Crapo. All right. Thank you.
    Now, I want to move to, frankly, back to California v. 
Texas and the pre-existing conditions issue that has been 
raised by a number of my colleagues here.
    We have heard a lot about the Affordable Care Act yesterday 
and today. I serve on the Finance Committee as well as the 
Judiciary Committee, and so, this is an issue I really care 
about a lot.
    I am passionate about ensuring that all individuals, 
especially Idahoans, have affordable, quality healthcare 
coverage and making sure that they have coverage for their pre-
existing conditions is especially important, regardless of what 
one thinks about the Obamacare legislation. Reasonable people 
can disagree about the totality of the success of Obamacare, 
and this is something that I think should be remembered, but 
many of the policies in Obamacare were policies that on which 
we had agreement between Republicans and Democrats, as we moved 
forward at that time, trying to craft a healthcare law. People 
may recall this was being negotiated in the Finance Committee 
for quite a while before President Obama pulled it back and 
then brought his own statute out.
    And one of the things that we had agreement on was 
protecting pre-existing conditions back then. There was no 
fight over that. And, in fact, I think every single U.S. 
Senator wants to protect access to coverage for patients with 
pre-existing conditions, Republicans and Democrats. So, here we 
are now, talking about the Obamacare legislation that was 
pushed through the Senate when there was a Senate and a 
President of the same party and the ability to avoid a 
filibuster, and we are now looking at legislation challenging 
one part of that.
    Again, you have talked about this, but I would like you to 
just set up this next question. There is a difference between 
NFIB v. Sebelius, the case which you have made some commentary 
on----
    Judge Barrett. Mm-hmm.
    Senator Crapo [continuing]. And Texas v. California.
    Could you tell me the difference?
    Judge Barrett. Yes. NFIB v. Sebelius involves whether the 
mandate violated the, it was framed, initially, as a case about 
whether the mandate violated the Commerce Clause. And the 
majority in that case, as you know I've discussed in earlier 
interchanges, interpreted the mandate provision to be a tax, 
rather than a penalty, and Chief Justice Roberts said that he 
thought it was justified as an exercise of Congress' taxing 
power but would have been invalid under the Commerce Clause.
    Now, the new case that the Supreme Court is poised to hear 
involves a different question. If the mandate, which has now 
been zeroed out, the initial question, it does resemble NFIB v. 
Sebelius, because the initial question is: Is something a tax 
if it's zero dollars? So, is it still a tax and if it's not a 
tax, can it be justified under Congress as taxing power?
    But severability, even assuming that it is no longer a tax 
because it is zeroed out, the next question is: If that 
provision is unconstitutional, does just that provision become 
inactive, so to speak, or does the whole statute fall?
    And that is the question of severability. So, in some 
respect, whether one thought that the mandate was 
unconstitutional or not, the Act would have to be found, that 
would have to be unseverable for a court to----
    Senator Crapo. And haven't--and you may not know the answer 
to this, but I believe that in the last session of the Supreme 
Court, 7 members of the Court said that there is a very strong 
presumption against--in favor of severability, rather than 
knocking down an entire statute.
    Judge Barrett. That is true. It's an established doctrine 
and it was reiterated, even last term.
    Senator Crapo. So, did you participate in a moot court case 
on this last month or in the last--near future?
    Judge Barrett. I did. So----
    Senator Crapo. Can you tell us what a moot court case is?
    Judge Barrett. Sure. So, William & Mary Law School has, 
every year, what it calls its Supreme Court preview, and it 
includes a moot court case. There's a long tradition of moot 
court exercises at law schools. You know, sometimes they're 
called mock trials. Sometimes they're called moot courts, 
that's when they're appellate.
    And it's a chance to educate the community around the law 
school, the students, or in the case of this William & Mary 
program, it also draws in people from around Williamsburg so 
that they can see how the judicial process works, so----
    Senator Crapo. And judges often participate in moot courts. 
Right?
    Judge Barrett. Judges often participate in moot courts, and 
in this particular one there were, maybe, comprising the panel, 
you know, the conference involved several other events, but 
this moot court involved a panel. It was supposed to be a mock 
argument for this case and there were about 4 judges, a couple 
law professors, and some journalists who were on the panel with 
advocates, flushing out the case so that, we did it by Zoom 
because of the pandemic, but so that students could see how the 
process might look.
    Senator Crapo. And so, what did the court, the moot court 
decide?
    Judge Barrett. Well, I do want to preface this, Senator 
Crapo, by saying it was an educational exercise----
    Senator Crapo. I understand.
    Judge Barrett [continuing]. So, it was made very clear to 
the audience both, at the outset, and then in the deliberation 
room and then outside, that this didn't, it was not designed to 
reflect the actual views of any of the participants, and nor 
could it, because, you know, this was show up, you're not 
reading the briefs, diving that deep down, and, you know, a lot 
of times, people change their votes in the deliberation room 
just for the sake of mixing it up and making it interesting.
    Senator Crapo. And I understand that, and I appreciate you 
making that clarification.
    Judge Barrett. Yes. I just, yes, I just want to make clear 
the context.
    The vote was--in the panel, the majority said that the 
mandate was now a penalty and was unconstitutional, but 
severable. I think there was also a group and a minority who 
said there was no standing. To be honest, now I can't remember. 
Maybe there was, I could be wrong about this, and I feel like 
there was maybe another minority that said it wasn't 
unconstitutional for that.
    Senator Crapo. And how did you vote?
    Judge Barrett. I voted to say that it was unconstitutional, 
but severable.
    Senator Crapo. All right. So, you voted in favor.
    The one clue we might have as to your thoughts on the 
issue, even though this was just an exercise and you didn't 
have the whole case presented, and I understand that, but I'll 
just say to the viewers, the one clue we had is your ruling in 
this moot court case. And I think that's kind of an answer, 
frankly, to a lot of those who are raising this specter that 
you are going to try to take the whole Affordable Care Act away 
from everyone because of this very narrow case that is in front 
of the Supreme Court.
    Judge Barrett. Well, I do want to be very clear, Senator 
Crapo, for the record, that it wasn't designed to reflect my 
actual views. So, to the extent that people think I might have 
been signaling to the President or anyone else what my views on 
the Affordable Care Act are, you know, they couldn't have taken 
any signal from that, certainly----
    Senator Crapo. I understand.
    Judge Barrett [continuing]. But I wasn't trying to signal 
anything because it was a mock exercise.
    Senator Crapo. It was a mock case. It was a moot court. I 
understand that very much.
    Let me just go into a couple of other issues here, in fact, 
I can hit them very fast. Senator Ernst mentioned the Orchard 
Hill v. Army Corps of Engineers case on the Waters of the 
United States. That is a big deal in Idaho and, frankly, in 
most of the Western United States, most of the entire United 
States.
    And I appreciated your ruling, and I am just going to tell 
you, I am not going to ask you a question about it. I 
appreciated your ruling.
    I am going to ask you a question about the Chevron 
doctrine, and this is one of those you may not be able to 
respond to, but, well, would you tell me what the Chevron 
doctrine is?
    Judge Barrett. Sure. So, I got into this a little bit with 
Senator Ernst. The Chevron doctrine is the doctrine that when a 
statute is clear, then that's end of case, but if Congress 
passes a statute that's giving an agency authority or that's 
describing the boundaries of an agency's authority and there's 
ambiguity in that statute, then the court will treat that 
ambiguity as a delegation to the statute, a delegation to the 
agency to fill in the details.
    Senator Crapo. Yes. And I will just tell you, I disagree 
with that doctrine. I think that the courts ought to have the 
ability to interpret the statute and if it's ambiguous, they 
should interpret it as best they can. And that the interpreter 
in our system should not be the agency that is enforcing the 
statute. I think the courts should oversee this.
    Now, that is just my opinion, so the question that you 
probably can't answer is: What is your opinion?
    [Laughter.]
    Judge Barrett. You're right, I can't answer, Senator Crapo.
    [Laughter.]
    Senator Crapo. Okay. Well, thank you very much.
    I just had another couple of quick questions. I was going 
to go into the Heller case. Well, I will ask you, tell me what 
do you believe the basic ruling of Heller is.
    Judge Barrett. The basic ruling of Heller is that the 
Second Amendment protects an individual right to bear arms for 
self-defense.
    Senator Crapo. So, if I were to characterize it as the 
Heller case reaffirmed that the right to bear arms is one of 
the rights guaranteed in the Bill of Rights to individuals.
    Judge Barrett. That is what Heller held.
    Senator Crapo. That is what Heller held.
    Okay. You know, I do have a number of additional questions 
which were just kind of softballs, but----
    Judge Barrett. I like softballs.
    [Laughter.]
    Senator Crapo. Maybe you deserve softballs right now, but I 
think, instead, I will give you the break and you can----
    Judge Barrett. I like that, too, Senator Crapo.
    Senator Crapo [continuing]. And you can have the last 5 
minutes of my time or you will get done 5 minutes sooner.
    Thank you very much for----
    Judge Barrett. Thank you, Senator.
    Senator Crapo [continuing]. Being willing to do this. You 
are an outstanding nominee, and I am very glad to be able to 
support you.
    Judge Barrett. Thank you, Senator Crapo.
    Chairman Graham. Thank you, Senator Crapo.
    With that goodwill in mind, we will break, and we will come 
back, say, 6:50. That will give us about 30 minutes to grab a 
bite and we will start with Senator Harris when we get back.
    [Whereupon the Committee was recessed and reconvened.]
    Chairman Graham. Sorry I am late. I owe you a minute. I 
apologize.
    Senator Harris. Is she available? Senator Harris, if you 
could--there you are. We see you. Can you say something? Can 
you hear me, Senator?
    Senator Harris. Yes, I can.
    Chairman Graham. Okay. Great. Okay. The floor is yours, 
Senator Harris.
    Senator Harris. Thank you, Mr. Chairman. First I want to 
extend greetings to Judge Barrett, and I look forward to our 
conversation this evening.
    Judge Barrett. Thank you, Senator.
    Senator Harris. Thank you. Before I begin I wanted to take 
a moment to talk directly with the American people about where 
we are and how we got here.
    So, we are in the middle of a deadly pandemic that has hit 
our country harder than any other country in the world. More 
than 215,000 of our fellow Americans have died, and millions 
more, including the President, Republican Members of this 
Committee, and more than 100 front-line workers here at the 
Capitol complex have been infected. This pandemic has led to an 
historic economic crisis, causing millions of workers to lose 
their jobs, without warning, and 12 million Americans have lost 
their employer-based health insurance.
    The Senate, I strongly believe, must be, and needs to be 
laser-focused on you, the American people, to help you get 
through this pandemic. To do so, the Senate urgently needs to 
pass critical financial relief for those who are struggling 
because of this pandemic, and many are struggling.
    People need help. They need help to pay their rent or 
mortgage. Parents need help putting food on the table. The 
millions of American workers who have lost their jobs need help 
making it through the end of the month, and small businesses 
need help so they don't have to close their doors for good. But 
sadly, Senate Republicans have rushed to hold this Supreme 
Court confirmation hearing rather than help those who are 
suffering through a public health crisis not of their making. 
As I said yesterday, these priorities are not the American 
people's priorities.
    Since President Obama signed the Affordable Care Act into 
law, Senate Republicans' number one priority has been to tear 
it down. And remember, before the ACA, the Affordable Care Act, 
insurance companies held virtually unchecked power over our 
healthcare system. They could refuse to cover basic medical 
expenses, like maternity care, like mammograms, like 
prescription drugs, or hospital stays. Worst of all, if you 
were sick they could deny you coverage altogether and there was 
nothing you could do about it.
    Over the last 9 years, Republicans in Congress have tried 
70 times--70 times--to repeal or roll back the ACA in the 
United States Congress. In 2013, Senate Republicans were so 
desperate to stop its success that they shut down the entire 
Government for weeks.
    After President Trump was elected, Washington Republicans 
spent nearly a year trying to repeal the ACA. But I will always 
remember the thousands of Americans, from all over our country, 
and all walks of life, who crowded into the halls of the United 
States Capitol to require that lawmakers see their faces and 
understand how they would be hurt if there was a repeal of the 
Affordable Care Act. Brave activists in the disability 
community staged sit-ins on the Hill. Seniors protested to keep 
prescription drugs affordable. Mothers and fathers walked the 
halls with their children in strollers to show Congress the 
face of those who depended on the law, and doctors and nurses 
protested to protect their patients' access to the care they 
desperately need.
    Together with many of my colleagues, I joined civil rights 
and community leaders to speak to the thousands of people who 
gathered outside the Capitol, and they pleaded, as they begged 
with lawmakers, to do the right thing. All of these dedicated 
Americans demanding that their voices be heard.
    And they made a difference. They made a difference. History 
will remember that late night, thumbs-down movement when the 
great, great John McCain denied Republicans the opportunity to 
appeal the Affordable Care Act. And now, following a decade of 
failure, Washington Republicans have realized that the 
Affordable Care Act is working too well, and helping too many 
people, to repeal it without facing serious political 
consequences.
    But what are they doing? After suffering the backlash they 
provoked by targeting the law in Congress, they decided instead 
to circumvent voters and try to strike down the Affordable Care 
Act through the courts. Right now the Trump administration and 
Senate Republicans are urging the Supreme Court to strike down 
the entire Affordable Care Act and all of its patient 
protections. Republicans are scrambling to confirm this nominee 
as fast as possible, because they need one more Trump judge on 
the Bench before November 10th to win and strike down the 
entire Affordable Care Act.
    This is not hyperbole. This is not a hypothetical. This is 
happening. And here is what you have to know. People are 
scared. People are scared of what will happen if the Affordable 
Care Act is destroyed in the middle of a pandemic. There are 
more than 100 million Americans with pre-existing conditions 
like asthma and diabetes, heart disease, who know that they 
could be denied coverage or charged more by insurance companies 
if Donald Trump is successful in getting rid of the Affordable 
Care Act. And because of the coronavirus, more than 7 million 
people have now a pre-existing condition that they didn't have 
earlier this year. Those who depend on the ACA are afraid of 
their lives being turned upside down if the Court strikes it 
down. They know what could happen.
    And, Judge Barrett, I will share with you and the American 
people a list: no protections for pre-existing conditions; 
higher costs for healthcare for women and people over the age 
of 50; young adults kicked off their parents' insurance; more 
expensive prescription drugs for seniors; insurance companies 
refusing to cover mental healthcare; insurance companies 
refusing to cover maternity care; no free mammograms, cancer 
screenings, or birth control; insurance companies reinstating 
annual and lifetime caps; and more than 20 million Americans 
losing insurance at the worst possible time--again, in the 
midst of a pandemic--including nearly 2 million Texans, 670,000 
North Carolinians, 288,000 South Carolinians, 227,000 Iowans, 
and 4.2 million Californians.
    And the pain of losing these protections would 
disproportionately be felt among the 9 million African 
American, Latino, Asian, and Native Americans who gained 
coverage under the Affordable Care Act.
    But this isn't about statistics. This is about millions of 
real people, living real lives, who deserve their government 
and its institutions to see them and to heed their call. And I 
know a Republican Member of this Committee said earlier today 
that the people who will lose healthcare are somehow not 
relevant to this hearing. I disagree. Helping these people is 
supposed to be why we are all here, why we all ran for office 
in the first place.
    And I am here to fight for people like Felicia Perez--and 
this is her.
    [Poster is displayed.]
    Senator Harris. Felicia is a writer, a public speaker, and 
former high school teacher from Southern California, who now 
teaches at the University of Nevada at Reno. She has multiple 
pre-existing conditions, including arthritis, asthma, and a 
rare autoimmune disorder that caused tumors that had wrapped 
around her optic nerve and part of her brain. Her life depends 
on periodic cancer-fighting infusions that cost $160,000 a 
year.
    Felicia is terrified. She knows that without the Affordable 
Care Act she could not afford ongoing treatment, the treatment 
she needs to stay alive. And here is exactly what she said, and 
I will quote, ``My life is in the hands of people I do not 
know, who do not know me, who are essentially telling me I 
don't matter, that my life doesn't matter, that my health 
doesn't matter, that the day-to-day quality of my life doesn't 
matter, and that's really hard.''
    Tragically, Felicia's story is not unique. Her fears are 
shared by millions of Americans. The Affordable Care Act and 
its protections hinge on this Supreme Court and the outcome of 
this hearing.
    Before being elected, President Trump promised that every 
Justice he put forward would, quote, ``Will do the right thing, 
unlike Bush's appointee, John Roberts, on Obamacare,'' unquote.
    Judge Barrett, 18 months later you criticized the Chief 
Justice for upholding the Affordable Care Act when you 
concluded, quote, ``Chief Justice Roberts pushed the Affordable 
Care Act beyond its plausible meaning to save the statute.''
    My question is how many months after you published that 
article did President Trump nominate you to be a judge on the 
Court of Appeals?
    Judge Barrett. Senator Harris, I apologize. I don't 
remember the timing of that article. I was nominated, I believe 
my nomination to the Court of Appeals was announced in May of 
2017.
    Senator Harris. That is correct.
    Judge Barrett. But I don't remember when the article came 
out.
    Senator Harris. The article was published in January of 
2017, so that would have been 5 months later.
    Justice Ginsburg, whose seat you are seeking to fill, 
provided the critical fifth vote in a 5-4 decision that upheld 
the Affordable Care Act. So let's lay this out for everyone who 
is watching. As I discussed previously, one, Republicans have 
spent a decade trying to destroy the Affordable Care Act. Two, 
Donald Trump promised to name a Supreme Court Justice, and 
Supreme Court Justices, who would tear down the Affordable Care 
Act. Three, President Trump is before the Supreme Court right 
now arguing that it be struck in its entirety.
    Four, the Supreme Court could be just one vote away from 
overturning the Affordable Care Act and all of its protections, 
including for everyone who has a pre-existing condition, or may 
ever get a pre-existing condition. In other words, the 
Affordable Care Act and all its protections hinge on this seat 
and the outcome of this hearing. And I believe it is very 
important the American people understand the issues at stake 
and what is at play.
    Judge Barrett, the day after President Trump announced your 
nomination to the Supreme Court he tweeted, quote, ``Obamacare 
will be replaced with a much better and far cheaper alternative 
if it is terminated in the Supreme Court,'' end quote. But in 
reality, there is no alternative that protects the millions of 
Americans who depend on the Affordable Care Act every day. The 
horrifying truth is that President Trump and the Republicans in 
Congress are fighting to take healthcare away from the American 
people in the middle of a pandemic, as I have said.
    President Trump has said that he wants to protect the 
American people's healthcare, but the reality is, right now he 
is asking the Supreme Court to take it away, period.
    Senator Klobuchar, Judge Barrett, asked you earlier today, 
but did not receive an answer. Prior to your nomination, were 
you aware of President Trump's statements committing to 
nominate judges who will strike down the Affordable Care Act? 
And I would appreciate a yes-or-no answer, please.
    Judge Barrett. Well, Senator Harris, I want to be very, 
very careful. I am under oath. As I am sitting here I don't 
recall seeing those statements, but if--let's see, I don't 
recall seeing or hearing those statements, but I don't really 
know what context they were in, so I guess I can't really 
definitively give you a yes-or-no answer. What I would like to 
say is I don't recall hearing about or seeing such statements.
    Senator Harris. Well, I imagine you were surrounded by a 
team of folks that helped prepare you for this nomination and 
hearing. Did they----
    Judge Barrett. I have had--yes----
    Senator Harris. Well, let me finish, if you don't mind.
    Judge Barrett. Oh, I am so sorry.
    Senator Harris. Did they inform you of the President's 
statements and that this might be a question that was presented 
to you during the course of this hearing?
    Judge Barrett. When I had my calls with Senators it came 
up. Many of the Democratic Senators wanted to know about the 
Affordable Care Act and to satisfy themselves that I had not 
made any pre-commitments to the President about it.
    Senator Harris. And so you then became aware of the 
President's statement. Is that correct?
    Judge Barrett. Let's see, Senator Harris. In the context of 
these conversations I honestly can't remember whether Senators 
framed the questions in the context of President Trump's 
comments. Perhaps so. I think, from my perspective, the most 
important thing is to say that I have never made a commitment, 
I have never been asked to make a commitment, and I hope that 
the Committee would trust in my integrity not to even entertain 
such an idea, and that I wouldn't violate my oath if I were 
confirmed and heard that case.
    Senator Harris. So just so I am clear, and then we can move 
on, are you saying that you are now--before I said it--aware or 
not aware that President Trump made these comments about who he 
would nominate to the United States Supreme Court?
    Judge Barrett. Senator Harris, what I was saying, I thought 
you initially framed the question as whether I was aware before 
this nomination process began, and my answer to that----
    Senator Harris [continuing]. And the answer to the question 
was, if you are aware--were you aware before this hearing 
began?
    Judge Barrett. You are changing--you are asking me now 
whether I was aware before the hearing began?
    Senator Harris. As a follow-up question, I am, yes.
    Judge Barrett. And what I said was that when I had my calls 
with Democratic Senators this question came up, and I don't 
recall but it may well have been that they referenced those 
comments in the course of those calls. Even if so, that wasn't 
something that I heard or saw directly by reading it myself.
    Senator Harris. Senator Leahy asked you earlier today, but 
I think it bears repeating, do you think it is important for 
the American people to believe that Supreme Court Justices are 
independent and fair and impartial? That is a yes-or-no answer, 
please.
    Judge Barrett. Yes, Senator Harris.
    Senator Harris. A number of my colleagues have asked you 
today whether you would recuse yourself from cases on the 
Affordable Care Act. You did not directly answer their 
questions and instead you described a process by which that 
would work or happen. And so my question is, isn't it true that 
at the end of that process, regardless of that process, that it 
would be you who ultimately would make the decision about 
whether or not you would recuse yourself?
    Judge Barrett. That is true, and I can't have you elicit a 
commitment from me about how I would make that decision in 
advance. That would be wrong.
    Senator Harris. Right. And what I have asked you is that is 
it not correct that that is the process, that ultimately it 
would be you, and you alone, that would make the decision about 
whether you would be recused? You have already opined on the 
constitutionality of the Affordable Care Act, and that position 
satisfied the President's promise to only nominate judges who 
would tear down the Affordable Care Act. And Senate Republicans 
rushed this process so that you could rule on this very case.
    The reasonable question about your impartiality will 
undoubtedly hang over this Court's ultimate decision in the 
Affordable Care Act case if you refuse to recuse yourself. I 
strongly believe that.
    Supreme Court Justices routinely consider the consequences 
of their decisions on people's lives. Earlier this year, the 
Supreme Court ruled against President Trump in his effort to 
repeal DACA protections for DREAMers, children, of course, who 
have arrived in the United States, many before they could talk 
or walk.
    Chief Justice Roberts wrote the opinion, for a 5-4 
majority, that included the crucial vote of Justice Ruth Bader 
Ginsburg. The Court rejected the Trump administration's attempt 
to end protections for DREAMers. Chief Justice Roberts said the 
administration had not taken into consideration the fact that 
many DREAMers relied on those protections when they started 
their careers and businesses, when they served in the military 
of the United States, when they bought homes, and when they 
started families.
    Senator Hirono asked you whether it is appropriate for a 
Supreme Court Justice to consider real-word impacts. But you 
are a sitting judge now, so my question is, in deciding whether 
to uphold government action do you currently consider the 
consequences of your rulings on people's lives?
    Judge Barrett. Well, Senator Harris, that is part of the 
decision of every case.
    Senator Harris. And so you do?
    Judge Barrett. Every case has consequences on people's 
lives, so of course I do in every case. That is part of the 
judicial decision-making process.
    Senator Harris. And would you do that if you are actually 
voted on the United States Supreme Court? Would you do that 
there as well?
    Judge Barrett. Senator, considering how the resolution of a 
dispute will affect parties, will affect people is part of the 
judicial decision-making process, and I will continue engaging 
in that process, to the best of my ability.
    Senator Harris. So if the Affordable Care Act is struck 
down, more than 100 million Americans with pre-existing 
conditions, like heart disease, diabetes, and cancer, would pay 
more for insurance or be denied coverage entirely. More than 20 
million Americans could lose their health coverage entirely, 
including nearly 3 million Black Americans and over 5 million 
Latino Americans who received access to health insurance 
because of the Affordable Care Act. Insurers will once again be 
able to discriminate against more than 50 percent of African 
Americans and nearly 40 percent of Latinos with pre-existing 
conditions. Insurers will be able to deny coverage to more than 
one-quarter of Native Americans with conditions like diabetes, 
heart disease, and cancer. All of this in the midst of a 
pandemic that is not going away any time soon. A pandemic, that 
when age is taken into account has been three times as deadly 
for Black, Latino, Pacific Islander, and Native Americans. A 
pandemic that has killed approximately 1 in 1,000 Black 
Americans, 1 in 1,200 Native Americans, and 1 in 1,500 Latino 
Americans.
    Judge Barrett, would you consider the 135 million people 
who gained protections under the Affordable Care Act when 
deciding a case that challenges that law?
    Judge Barrett. Senator Harris, if I were to be confirmed 
and conclude that I was not--that I was able to sit on the 
case, pursuant to the recusal statute, and then if I heard the 
case and decided the case I would consider all the protections 
that Congress put in place.
    And as I said earlier during this hearing, the question 
would be figuring out whether Congress, assuming that the 
mandate is unconstitutional now, whether that consistent with 
your intent--you know, this is Congress' law--would permit this 
Act to stand or whether the flawed portion of it could just be 
excised out. And that is a question not of what judges want. It 
is not a question of the Supreme Court. It is a question of 
what Congress wanted in the statute. And that is the statute, 
you know, that you enacted and extended this healthcare 
coverage to millions of Americans.
    Senator Harris. What weight would you give the fact that 
135 million Americans with pre-existing conditions are now 
depending on the protections of the Affordable Care Act? What 
weight would you give that?
    Judge Barrett. Well, Senator Harris, as I mentioned to 
Senator Hirono, stare decisis takes reliance interests into 
account, because as I said before, stare decisis is about 
keeping stability in the law. So, the law often takes into 
account reliance interests. I can't really say, sitting here, 
how they would play in, or weigh in this case, because that is 
part of the legal calculus of the case.
    So, I can't really give you the kind of commitment or pre-
commitment that you are asking from me of how I would weigh 
factors or how I would structure my decision-making process.
    Senator Harris. I would ask you to consider, if you are 
confirmed on the Court, a credible benefit of the Affordable 
Care Act, and that a destruction of its protections will have a 
devastating impact on millions--hundreds of millions of 
Americans.
    Judge Barrett, you testified yesterday that Justice Ruth 
Bader Ginsburg opened the door for many women in law, and I 
certainly believe and know that to be true, as a personal 
matter.
    She was a trailblazer for women's equality and gender 
equity. As a law student, as a teacher, as a civil rights 
lawyer, and as the second woman ever to sit on the United 
States Supreme Court, Justice Ginsburg broke many barriers for 
women across the country.
    We, I believe, all fondly remember her as a person who had 
patience, she had the will and the vision to make our country a 
more equal place and a more just place. And one of the things 
she fought for was a woman's right to control her own body and 
to make decisions about her own body and healthcare and 
reproductive choices.
    The Constitution of the United States protects a woman's 
right to choose whether or when to become a parent, and it 
protects a woman's right to choose abortion. Women of color, 
immigrant women, women with low incomes, and women in rural 
areas face significant barriers when attempting to access birth 
control, cancer screenings, and comprehensive reproductive 
healthcare. Moreover, anti-choice activists and politicians 
have been working for decades to pass laws and file lawsuits 
designed to overturn Roe and the precedents that followed.
    The threat to choice is real. Just last year, the Court 
heard a case that gave it an opportunity to revisit and 
overturn its abortion precedent. In a case called June Medical 
Services, the Supreme Court struck down a medically unnecessary 
restriction that would have closed all but one abortion clinic 
in Louisiana.
    Chief Justice Roberts agreed with the Court's four liberal 
members that the Court was bound by its own precedent to strike 
down the Louisiana law because it was virtually identical to a 
Texas law that the Court ruled unconstitutional in 2016. As a 
result, women in the State were able to receive the full range 
of reproductive care. But Chief Justice Roberts wrote his own 
separate opinion in the case to make clear that in the future 
he could not be counted on to uphold a woman's right to choose. 
Justice Ginsburg provided the critical fifth vote to strike 
down the unconstitutional abortion restriction in June Medical 
Services.
    So, we must be honest about the impact of her passing, and 
the impact it will have on the Court's decisions in cases 
regarding women's access to reproductive healthcare.
    Now my Republican colleagues have said that there is a 
minimal chance that the Supreme Court will overturn Roe, but 
back in January, 39 Republican Senators, including 10 Members 
of this very Committee, signed their names to a Supreme Court 
brief that asked the Court to, quote, ``take up the issue of 
whether Roe should be reconsidered, and if appropriate, 
overruled.''
    So, let's not make any mistake about it. Allowing President 
Trump to determine who fills the seat of Ruth Bader Ginsburg, a 
champion for women's rights and a critical vote in so many 
decisions that have sustained the right to choose, poses a 
threat to safe and legal abortion in our country. After all, 
President Trump said that overturning Roe v. Wade will, quote, 
``happen automatically, in my opinion, because I am putting 
pro-life Justices on the Court.''
    Judge Barrett, several times today you have quoted Justice 
Ginsburg's testimony about not making predictions in future 
cases. However, she was far more forthcoming at her 
confirmation hearing about the essential rights of women. In 
1993, Justice Ginsburg's confirmation hearing shows that she 
testified that, quote, ``The decision whether or not to bear a 
child is central to a woman's life, to her well-being, and 
dignity. It is a decision she must make for herself. When 
government controls that decision for her, she is being treated 
as less than a fully adult human responsible for her own 
choices.''
    Then Judge Ginsburg went on to say, quote, ``It is 
essential to women's equality with man that she be the 
decisionmaker, that her choice be controlling. If you impose 
restraints that impede her choice, you are disadvantaging her 
because of her sex,'' unquote.
    Now Justice Ginsburg did not tell the Committee how she 
would vote in any particular case, but she did freely discuss 
how she viewed a woman's right to choose. But, Judge Barrett, 
your record clearly shows you hold a different view. In 2006, 
you signed your name to an advertisement published in the South 
Bend Tribune. It described Roe v. Wade as, quote, ``an exercise 
of raw judicial power.'' It called for putting, quote, ``an end 
to the barbaric legacy of Roe v. Wade.''
    You signed a similar ad in 2013 that described Roe as, 
quote, ``infamous''--and expressed opposition to abortion. Also 
in 2013, you wrote an article about Supreme Court precedent in 
which you excluded Roe from a list of well-settled cases that 
you said, quote, ``no Justice would overrule, even if she 
disagrees,'' suggesting, of course, that you believe Roe is 
susceptible to being overturned.
    On the 40th anniversary of Roe, you delivered a speech in 
which you said that the Court's recognition of the right to 
choose was, quote, ``created through judicial fiat,'' rather 
than grounded in the Constitution. And during your tenure on 
the Seventh Circuit Court of Appeals, you have been willing to 
reconsider abortion restrictions that other Republican-
appointed judges found unconstitutional.
    As the Senate considers filling the seat of Justice Ruth 
Bader Ginsburg, who was straightforward enough in her 
confirmation hearing to say that the right to choose is, quote, 
``essential to woman's equality,'' unquote, I would suggest 
that we not pretend that we don't know how this nominee views a 
woman's right to choose to make her own healthcare decisions.
    Mr. Chairman, I ask unanimous consent that the following 
three documents be entered into the record: a letter opposing 
Judge Barrett's nomination from the NAACP; a statement opposing 
Judge Barrett's nomination from the Planned Parenthood 
Federation of America and Planned Parenthood Action Fund; and a 
report opposing Judge Barrett's nomination from the NAACP Legal 
Defense and Educational Fund.
    Chairman Graham. Without objection.
    [The information appears as submissions for the record.]
    Senator Harris. Thank you, Mr. Chairman.
    Chairman Graham. Thank you very much, Senator Harris. 
Senator Kennedy.
    Senator Kennedy. Mr. Chairman, I have a letter here in 
support of Judge Barrett signed by 281 graduates and former 
classmates of hers at the extraordinary St. Mary's Dominican 
High School in New Orleans, and I would like to offer that into 
the record.
    Chairman Graham. Without objection.
    [The information appears as a submission for the record.]
    Senator Kennedy. You tired, Judge?
    Judge Barrett. I am looking forward to the end of the 
hearing today, I must admit.
    Senator Kennedy. Me too.
    [Laughter.]
    Senator Kennedy. I am still going to ask you questions.
    Judge Barrett. I was hoping you would say you were going to 
yield your time, Senator.
    Senator Kennedy. No, ma'am.
    A lot of my colleagues, and you as well, talked about the 
oath that you will take if you are confirmed and sworn in as an 
Associate Justice of the United States Supreme Court. What is 
in that oath? What does it say?
    Judge Barrett. Well, that oath requires a judge--you know, 
I have taken the oath as a judge--to do equal justice to all, 
you know, without fear, favor, and regardless of wealth, you 
know, to fairly apply the laws, is what it boils down to, to 
not give preferential treatment or express bias, in plain 
terms.
    Senator Kennedy. It says you will administer the law in an 
impartial manner, without regard to your personal feelings, 
doesn't it?
    Judge Barrett. Yes, it does, Senator.
    Senator Kennedy. It says you will support and defend the 
Constitution, doesn't it?
    Judge Barrett. Mm-hmm.
    Senator Kennedy. Pretty serious oath, isn't it?
    Judge Barrett. It is.
    Senator Kennedy. Are you going to take that oath and affirm 
it if you are confirmed?
    Judge Barrett. Yes.
    Senator Kennedy. You are not lying?
    Judge Barrett. I am not lying. I took that oath before I 
began as a judge on the Seventh Circuit and I have not violated 
that oath, and I would take it again. Oaths are serious to me.
    Senator Kennedy. Well, now Senator Harris just called you a 
liar. She said that if you take that oath you would be lying, 
that you have already made up your mind to how you are going to 
vote on some cases, particularly dealing with abortion and the 
Affordable Care Act.
    Let's just cut to the chase. She said you are a liar. Are 
you a liar?
    Judge Barrett. I am not a liar, Senator Kennedy.
    Senator Kennedy. All right. I want you to tell me again. 
Look me in the eye. You are in front of God and country. If you 
take that oath, will you mean it?
    Judge Barrett. I will mean it. If I take that oath, I will 
mean it.
    Senator Kennedy. You swear to God?
    Judge Barrett. I swear to God, and I have sworn at the 
Seventh Circuit, and I meant it there too.
    Senator Kennedy. You will never break that oath.
    Judge Barrett. I will not break that oath.
    Senator Kennedy. No matter what your personal feelings are.
    Judge Barrett. No matter what my personal feels are.
    Senator Kennedy. No matter what your religion is.
    Judge Barrett. No matter what my religion is.
    Senator Kennedy. So, when Senator Harris and her colleagues 
say you are a liar, they are wrong.
    Judge Barrett. They are.
    Senator Kennedy. All right. Let's see. You are 48 years 
old. You are an honors graduate of Rhodes College, an 
extraordinary liberal arts school. You are an honors graduate 
of Notre Dame Law School. You clerked for two distinguished 
Federal judges. You have been a chaired law professor. You are 
a devout Christian. You have raised seven children.
    I don't mean to wax too metaphysical here, but do you have 
personal values as a result of this?
    Judge Barrett. I would hope that no one would consider me 
to be nominated for anything if I'd had no values.
    Senator Kennedy. Do you have personal opinions?
    Judge Barrett. Of course, I have personal opinions.
    Senator Kennedy. Do you have principles?
    Judge Barrett. I have principles. I wouldn't be fit for 
office if I didn't.
    Senator Kennedy. Let's suppose that we had a nominee appear 
before us. It happens to be a man, in my hypothetical.
    And he said, ``I have been nominated for a Federal 
judgeship, and I finished law school but I haven't cracked a 
law book since law school, since civil procedure. And I don't 
have any opinions. I don't have any principles. I don't read 
newspapers. I don't even read the news. I haven't read a book 
since law school. I am like Bluto in `Animal House.' ''
    [Laughter.]
    Senator Kennedy. ``I am just fat, drunk, and stupid. I 
think the Germans are the ones that bombed Pearl Harbor. I 
think climate change, didn't it cause the Cold War? But I am 
your guy, because I don't have any values. I am a blank 
slate.'' And that is what is required, isn't it, for me to be 
impartial? Do you think we ought to confirm that gentleman?
    Judge Barrett. Well, then-Chief Justice Rehnquist wrote an 
opinion on this issue, addressing recusal, and he said 
basically that if someone reached middle years, which one is 
basically middle-aged if one would be a Justice on the Supreme 
Court, and had a mind that was a blank slate, and had no 
opinions, then one would question such a person's fitness for 
office.
    Senator Kennedy. Well my colleagues seem to think you are 
only qualified if you are dumb, if you have a blank slate, if 
you have never thought about the world. You have thought about 
the world, haven't you?
    Judge Barrett. I indeed have.
    Senator Kennedy. Have you thought about social problems 
facing our world?
    Judge Barrett. I have thought about social problems facing 
our world.
    Senator Kennedy. Economic problems?
    Judge Barrett. Sure.
    Senator Kennedy. I don't want to know what your feelings 
are, but have you thought about the merits and our lack thereof 
of nuclear energy?
    Judge Barrett. No, I really haven't.
    Senator Kennedy. How about affirmative action? Have you 
thought about that, just as a subject?
    Judge Barrett. Sure. Yes, I have thought about it.
    Senator Kennedy. How about climate change? I mentioned 
climate change. Have you read about that?
    Judge Barrett. I have read about climate change.
    Senator Kennedy. And you have some opinions on climate 
change that you have thought about?
    Judge Barrett. You know, I am certainly not a scientist.
    Senator Kennedy. I am not saying you are.
    Judge Barrett. I mean, I have read things about climate 
change. I would not say that I have firm views on it.
    Senator Kennedy. How about, have you thought about the 
merits of a flat versus progressive income tax?
    Judge Barrett. I have thought fleetingly about that. These 
aren't things that I--you know, I am not a tax lawyer or an----
    Senator Kennedy. I am not trying to trap you.
    How about Justice Kagan? I have always been impressed with 
her credentials. A graduate of Princeton, did a M.Phil. at 
Oxford. I think she went to Harvard Law, was dean of Harvard 
Law School.
    Judge Barrett. Mm-hmm. She was.
    Senator Kennedy. Do you think she has thought about the 
world?
    Judge Barrett. I am sure she has, and I, too, am very 
impressed with Justice Kagan.
    Senator Kennedy. Yes, me too. Do you think she has thought 
about climate change and has personal feelings?
    Judge Barrett. I don't know. I mean, probably, but I can't 
really say what, you know, Justice Kagan has thought or not 
about it.
    Senator Kennedy. Okay. Now you have personal feelings about 
abortion, don't you?
    Judge Barrett. I do have personal feelings about abortion.
    Senator Kennedy. Do you have personal feelings? Have you 
ever thought about how we deliver healthcare in this country?
    Judge Barrett. I do, but Senator Kennedy, one of the things 
about the judicial role that I have repeatedly emphasized in 
the hearing today is that I have got personal views and 
personal feelings on a range of matters, just like every human 
does and just like every judge or Justice on the Court does.
    Senator Kennedy. Well, that is what I am getting at. Now my 
colleagues say, and Senator Harris said, that even though you 
have a personal opinion about abortion that you will violate 
your oath to put aside those personal feelings and fairly 
decide abortion cases. Is that true?
    Judge Barrett. That, I gather, was the thrust of what she 
was saying to me, yes.
    Senator Kennedy. Is she right?
    Judge Barrett. No, she is not right.
    Senator Kennedy. Let's talk about the Affordable Care Act, 
you know, California v. Texas. You have thought about the 
delivery of healthcare.
    Judge Barrett. Yes.
    Senator Kennedy. You have got seven children.
    Judge Barrett. I have spent a lot of time----
    Senator Kennedy. You have probably been to an emergency 
room.
    Judge Barrett. Yes.
    Senator Kennedy. You formed opinions about the delivery of 
healthcare. Are you going to--should you recuse yourself?
    Judge Barrett. Well, Senator Kennedy, any opinions that I 
have--everyone has opinions. Any opinions that I have are just 
not relevant to the resolution of a case.
    Senator Kennedy. Right.
    Judge Barrett. Affordable Care Act case or anything else. 
And a lot of my opinions, you know, are not ones that are 
expert, for example, in scientific matters or taxing matters. I 
mean, I might have dinner table discussions but I don't purport 
to be an expert in any of those fields.
    Senator Kennedy. Well, I am going to hit this one another 
way now because this is serious.
    Judge Barrett. Okay.
    Senator Kennedy. Some of my colleagues and Senator Harris 
say you are lying. Are you lying?
    Judge Barrett. I am not lying.
    Senator Kennedy. Are you going to take that oath and abide 
by it?
    Judge Barrett. Yes, sir.
    Senator Kennedy. Will you ever break that oath?
    Judge Barrett. I will not break that oath, Senator Kennedy.
    Senator Kennedy. Okay. Now one of my colleagues--and I 
don't remember which one--said that because President Trump 
appointed you, or nominated you rather, that if there is a case 
that happens to go before the United States Supreme Court after 
you are confirmed, dealing with the upcoming election, they 
asked you to recuse yourself. Do you remember that question?
    Judge Barrett. Mm-hmm.
    Senator Kennedy. And you said you would go through the 
process.
    Judge Barrett. Of determining the recusal question.
    Senator Kennedy. Right. But you didn't commit to recusing 
yourself, in one way or the other. You said you would go 
through the process.
    Judge Barrett. I said I would go through the process. I 
committed to going through the process of determining whether 
to recuse. I did not commit to it.
    Senator Kennedy. Now, when--President Trump nominated Judge 
Kavanaugh, now Justice Kavanaugh, to the Supreme Court.
    Judge Barrett. Mm-hmm.
    Senator Kennedy. Did anybody ask him to recuse himself when 
the President's tax returns were before the Court?
    Judge Barrett. I don't know.
    Senator Kennedy. Justice Gorsuch was nominated by President 
Trump and confirmed by the Senate. Did anybody ask him to 
recuse himself when President Trump's tax returns were before 
the Court?
    Judge Barrett. I don't know if any motions were filed.
    Senator Kennedy. Do you know who Paula Jones is?
    Judge Barrett. I do.
    Senator Kennedy. Okay. She sued a President of the United 
States, didn't she?
    Judge Barrett. She sued President Clinton.
    Senator Kennedy. Yes. Clinton v. Jones, a famous case. 
President Clinton nominated Justice Ginsburg and Justice Breyer 
to the United States Supreme Court. They heard that case. Did 
anybody ask that Justice Ginsburg recuse herself because 
President Clinton nominated her?
    Judge Barrett. I don't know if any motions were filed.
    Senator Kennedy. Do you think she should have?
    Judge Barrett. Well, that is not something I would opine 
on. I am sure that she discharged her oath to consider the 
question.
    Senator Kennedy. Did any of my colleagues ask that Justice 
Breyer recuse himself from hearing Clinton v. Jones because 
President Clinton had appointed him?
    Judge Barrett. I don't think that has come up.
    Senator Kennedy. Yes, I don't think so either.
    All right. I want to finish this housekeeping because I 
want to talk about the law. I want to give you a chance to 
respond to something.
    Some butthead professor at Boston University says that 
because you and your husband have two children of color that 
you are a white colonist. The implication is that you are 
racist, and that you use your two children as props. Do you use 
your children as props?
    Judge Barrett. Senator Kennedy, it was the risk of people 
saying things like that, which would be so hurtful to my 
family, that when I told Senator Graham this morning that my 
husband and I had to really weigh the cost of this, it was 
saying deeply offensive and hurtful things, things that are not 
only hurtful to me but are hurtful to my children, who are my 
children, who we love, and who we brought home and made part of 
our family, and accusations like that are cruel.
    Senator Kennedy. Yes, they are, aren't they? How low can 
you go? I didn't want to ask that question when your kids were 
here. I am sorry you have to go through that.
    Okay. Let's talk about the law. Let's suppose--I am not 
going to ask you how you are going to rule on a case----
    Judge Barrett. Okay.
    Senator Kennedy [continuing]. And you couldn't answer 
anyway. You would violate the Judicial Canons of Ethics. I 
don't know what would happen to you but it would probably be 
pretty bad, because you are sitting judge on the Seventh 
Circuit.
    Judge Barrett. I am a sitting judge.
    Senator Kennedy. But let's suppose that a litigant--let's 
suppose Congress passed a statute making distinctions on the 
basis of wealth.
    Judge Barrett. Okay.
    Senator Kennedy. And somebody filed a lawsuit and said--
their argument is that wealth is a suspect classification. How 
are you going to analyze a case like that? Tell me how you 
would analyze it. I just want to know how you think.
    Judge Barrett. Sure. Well, if someone argued that wealth 
was a suspect classification I assume you are saying that they 
are probably making an equal protection claim.
    Senator Kennedy. Yep.
    Judge Barrett. So, I would go to, precedent would be the 
first source, because the Equal Protection Clause has a rich 
body of precedent under it that identifies suspect classes. For 
example, classes drawn on the basis of race are suspect and 
they get heightened scrutiny. So I would look through Supreme 
Court precedent to determine whether there was anything 
relevant to the question of whether wealth was a suspect class 
or not.
    Senator Kennedy. Okay. You are familiar with San Antonio 
School District v. Rodriguez?
    Judge Barrett. My mind is getting mushy this many hours 
into the day.
    Senator Kennedy. I understand.
    Judge Barrett. So you might need to refresh my memory.
    Senator Kennedy. And why don't we put it another way. 
Wealth is not a suspect classification, is it?
    Judge Barrett. I am not aware of a case saying that wealth 
would be a suspect classification.
    Senator Kennedy. Yes. Here is what I don't understand. I 
have always wondered about this. Okay, remember, this is 
Congress passing the statute, not some State. So the litigant 
is not pursuing this under the Fourteenth Amendment. He is 
pursuing it under the Fifth Amendment. And he is making a 
substantive--well, you know, he is making an equal protection 
argument, not substantive due process. That would be a 
fundamental right.
    Where does the Fifth Amendment mention equal protection?
    Judge Barrett. Well, the Fifth Amendment has a Due Process 
Clause.
    Senator Kennedy. I know.
    Judge Barrett. The Fifth Amendment doesn't--but the----
    Senator Kennedy. But the Fourteenth Amendment has a Due 
Process Clause and an Equal Protection Clause, which applies to 
the States. But the Fifth Amendment clause, Fifth Amendment to 
the Constitution, has a Due Process Clause but it doesn't say a 
word about equal protection.
    Judge Barrett. That is true, but the Supreme Court has 
interpreted it as applying Equal Protection Clause as well 
against the----
    Senator Kennedy. How can they do that if the words aren't 
there?
    Judge Barrett. Well, there was a case, I believe a case in 
which the Court addressed this was the one that addressed the 
constitutionality of segregation in the District of Columbia, 
which is governed by Federal law. And the Court said the same 
principle applies. And so essentially the reasoning of Brown 
applied there.
    Senator Kennedy. Okay. I remember that.
    All right. Let's talk about Heller. Senator Crapo talked 
about it a little bit. I went back and took a look at Heller. 
Scalia wrote--you know this better than I do--Scalia wrote the 
majority opinion. I think Stevens wrote the leading dissent. 
And it was interesting, they both took an originalist approach, 
and I went back and looked it up. Scalia relied on--and tell me 
what an originalist approach is again. I know there are 
different strains, but what is your strain?
    Judge Barrett. Sure. You take the Constitution. So, in 
Heller, for example, what Justice Scalia did, and this is an 
example of originalism, he went back to the time of the 
ratification of the Second Amendment to figure out whether when 
people--when that Amendment was ratified, whether that right to 
bear arms was considered to be an individual right or one that 
was a civic right.
    Senator Kennedy. Excuse me for interrupting, but considered 
by whom?
    Judge Barrett. Considered by the people.
    Senator Kennedy. The people.
    Judge Barrett. By the people at the time, not in the minds 
of the Framers, but by the people.
    Senator Kennedy. Okay. I went back and looked--I am sorry 
to interrupt.
    Judge Barrett. No, no, no.
    Senator Kennedy. I've had a little coffee. I'm kind of 
jacked up.
    [Laughter.]
    Senator Kennedy. I went back and looked it up. Scalia, he 
relied on, to reach his opinion, he relied on Founding-era 
dictionaries, Founding-era treatises, English laws, American 
colonial laws, British and America historical documents, 
Colonial-era State constitutions, post-enactment commentary, 
all on the Second Amendment.
    And then here comes Justice Stevens. He is dissenting. He 
relied on, in his dissent, he relied on linguistic professors, 
an 18th-century treatise on synonymous words, on a different 
editor of one of the same Colonial-era dictionaries on which 
Scalia relied. So they both went back and looked at history.
    Here is my question: Since when did Justices become 
historians? Let me put it another way. If this is the way we 
are going to interpret the Constitution, by looking at history, 
why do we need you guys? Why don't we just hire professional 
historians?
    Judge Barrett. Well, so Justices, and judges, interpret 
laws, and we interpret texts. And if texts are unclear you have 
to figure out what their meaning is. Right? And so with the 
Constitution sometimes that does require delving into history.
    One point that I think is worth--and Justice Scalia would 
make this point--that the alternative is, let's say you have an 
amendment like the Second Amendment's right to bear arms. If it 
is not evident looking at it whether it is an individual right 
or a collective right, for the sake of the militia, one 
approach would be to rely on the moral judgment of the Justice 
to say whether they think it is a good thing or a bad thing for 
the common good for people to have that individual right. And, 
of course, judges aren't moral philosophers either. So when you 
are interpreting a text and you need to turn to something, what 
judges know is words, and what judges know is law, and so 
having them go back and look at the history, those are familiar 
things to lawyers.
    And there are things that all Justices consider. As I said 
earlier in the hearing, all Justices do consider the history 
and the original meaning, and that has been true since the 
beginning of the Court itself, throughout the 19th century. 
This idea of originalism isn't new. So, throughout the 19th 
century and all throughout the 20th the Court has resorted back 
and looked to see what the original meaning is. It is just that 
I would say the difference between those who identify 
themselves as, you know, originalists and those who just 
consider it is the amount of weight that they give it.
    So, all judges have to be skilled in doing it to a degree, 
because everyone agrees that as a matter of law the original 
meaning matters.
    Senator Kennedy. Tell me what the Ninth Amendment means.
    Judge Barrett. Well, the Ninth Amendment was once famously 
described by Judge Bork as an ``inkblot.'' The Ninth Amendment 
has not been fleshed out in litigation. I don't think it is an 
inkblot, just to be clear, but it is not one that there is a 
whole lot of caselaw on.
    Senator Kennedy. I want to talk to you a little bit about 
originalism, or at least your strain of originalism, and how it 
is related to textualism, and how it is different from 
purposivism.
    Did I understand you correctly to say that an originalist 
believes that judges have to follow the original public meaning 
of the Constitution?
    Judge Barrett. Correct.
    Senator Kennedy. The original public meaning.
    Judge Barrett. Public meaning as distinguished from private 
intentions of those who drafted the document.
    Senator Kennedy. Okay. Does this mean, when you say 
``original public meaning,'' whose meaning? The average person 
in the community at that time?
    Judge Barrett. Well, we would say informed observers.
    Senator Kennedy. I am sorry?
    Judge Barrett. I would say informed observers, like so 
those who were familiar with the debates, which is why looking 
at the State ratifying conventions, debating the Constitution 
can be a fruitful source.
    Senator Kennedy. Is it okay--I know it is not okay to do it 
exclusively, but is it okay to consider what the Drafters 
thought?
    Judge Barrett. Sure, and, you know, James Madison's notes 
from the Constitutional Convention are a source that the Court 
routinely looks to in trying to determine original meaning. It 
is just that it is not conclusive.
    Senator Kennedy. What is the dimension of time? I mean, at 
what point in time do you look at the original public meaning?
    Judge Barrett. Well, I would say there is some debate about 
that, because, you know, you won't necessarily have all the 
evidence you need right from 1791, which is when the Bill of 
Rights, as you know, was ratified. You know, I think looking at 
the evidence from before that--so we see that in Heller, that 
Justice Scalia looked at how people understood that right all 
the time leading up to the ratification of the Second 
Amendment, because it cast light on the language people were 
speaking at the time and how they would have understood it.
    So, you definitely can look some before----
    Senator Kennedy. Okay. Excuse me for interrupting.
    Judge Barrett. Yes, of course.
    Senator Kennedy. My clock is running. Okay. If you look at 
10 years after the Constitution was adopted, is that okay? How 
about 20?
    Judge Barrett. I think it's--I think all of that can be 
relevant evidence. I think the farther that you get away from 
the ratification of the document then I think the dicier it 
gets, because we might say that, you know, between 1791 and, 
you know, 1801 that people had roughly the same understanding. 
But of course, as time passes, you know, then attitudes can 
change. So I wouldn't say that there is a firm cutoff, but I 
think it is clearly the case that the evidence that is closer 
to the time is the most probative.
    Senator Kennedy. Okay. What is the difference between 
originalism and textualism?
    Judge Barrett. Well, textualism is how we describe a method 
of interpreting statutes. So it actually, in many respects, is 
kind of like originalism applied to a statute. So it would say 
you take statutory text, you know, for the Clean Water Act or, 
you know, the--make up one--the Amy Barrett Act passed today. 
You look at what the words would have meant to those who read 
the Act at the time, and informed observers of the debates.
    Senator Kennedy. So you are looking at the ordinary meaning 
of the words.
    Judge Barrett. You are looking at the ordinary meaning of 
the words.
    Senator Kennedy. The plain meaning of the words.
    Judge Barrett. The plain meaning of the words.
    Senator Kennedy. What if they are unclear?
    Judge Barrett. Well, there are a series of canons of 
interpretation that judges employ to decipher language. They 
are like linguistic tools. Like sometimes a list means the 
expression of some things implies the exclusion of others.
    Senator Kennedy. I am familiar with all those. You know 
them better than I do. But if the statute is unclear, if there 
is no ordinary meaning, can you look at legislative history?
    Judge Barrett. Generally, I think that legislative history 
is the less fruitful source, because generally, when people 
make arguments about legislative history, they tend to be less 
about what a word meant and how a statute would apply to a 
certain circumstance, which is a little bit different.
    Senator Kennedy. But if it is ambiguous you can look at 
legislative history as a last resort.
    Judge Barrett. You can look at legislative history to 
determine whether there was a particular understanding of a 
word or a phrase. But I think it would be, in most cases, 
inadvisable to look at legislative history to make a 
determination, certainly not to treat it as binding, about how 
a statute would apply to a particular set of facts.
    Senator Kennedy. Okay. Well, how ambiguous--a lot of text 
will say--if the statute is ambiguous, if it is unclear, then I 
can consider secondary sources. How ambiguous does it have to 
be--51 percent? Sixty-five percent? How do you know how 
ambiguous it has to be?
    Judge Barrett. Well, it is not a precise--it is an art, not 
a science, I would say, Senator Kennedy. You know, you exhaust 
all the canons of interpretation, and that includes even ones 
that are not the grammatical canons but are like the avoidance 
canon. You run through all of those and then you look at the 
structure of the statute. And, I mean, I think deciding when 
something crosses the threshold and becoming ambiguous so you 
can consider canons like the rule of lenity or the avoidance 
canon, you know, that that is a very difficult question, and it 
is part of the debate about the Chevron doctrine.
    Senator Kennedy. Okay. Are you familiar with the term 
``purposivist''?
    Judge Barrett. Yes.
    Senator Kennedy. Okay. I think--you correct me now. A 
purposivist says, look, I look at the statute. Even if it is 
clear I can still look at secondary sources and try to figure 
out what problem the legislative body was trying to solve.
    Judge Barrett. That is so, yes. A purposivist would say 
that to be faithful to Congress would be to be faithful to the 
purpose of the statute----
    Senator Kennedy. Yes.
    Judge Barrett [continuing]. And that sometimes the text 
doesn't align exactly with the purpose, and in that 
circumstance the judge should go with the purpose rather than 
the text.
    Senator Kennedy. Now everybody is a textualist now, or an 
originalist. But really, aren't a lot of our textualists really 
purposivists? In other words, they go, ``Well, I looked at the 
language of the statute. It is unclear, so I checked off the 
originalist--or rather, texualist box, and now I can just go 
look at what problem Congress is trying to decide and do 
whatever the hell I want to do.''
    Judge Barrett. There has been some academic commentary, 
definitely, in the last 5 or 10 years, saying that that has 
become kind of the new strain of textualism. You might know the 
case Holy Trinity.
    Senator Kennedy. Yes.
    Judge Barrett. Yes, calling it the new----
    Senator Kennedy. It has been overruled though, hasn't it?
    Judge Barrett. Holy Trinity--you mean its approach to 
statutory interpretation and endorsement?
    Senator Kennedy. Yes.
    Judge Barrett. No, it has never been overruled, but it has 
fallen out of favor. But this idea of doing what you are 
saying, stretching to find ambiguity in texts, the argument 
that some make is that it is kind of a new form of Holy 
Trinity, because rather than saying that the text is clear but 
inconsistent with the purpose, the argument is that the purpose 
renders the text unclear.
    Senator Kennedy. All right. Let me ask you a couple of 
more. I wanted to talk about a State constitution. In 
Louisiana, we had a constitutional convention in 1973. We wrote 
a new State constitution. And we recorded everything. We got, I 
think, 14 volumes of transcripts, committee reports, anything 
you could possibly want to know about the drafting of the 1974 
Louisiana constitution.
    You are an originalist. Are you telling me to just throw 
all that stuff out?
    Judge Barrett. No. Those things would be the equivalent of 
looking at James Madison's notes from the Constitutional 
Convention or the State ratifying conventions. All those things 
shed light on what Louisianans were thinking when that 
constitution was drafted and ratified.
    Senator Kennedy. Okay. Mr. Chairman, I want the record to 
reflect that I landed this plane with 26 seconds left.
    Chairman Graham. So noted. Thank you very much, Senator 
Kennedy. Senator Blackburn.
    Senator Kennedy. Thank you, Judge.
    Judge Barrett. Thank you, Senator.
    Senator Blackburn. Thank you, Mr. Chairman.
    I have three letters to submit: one from Penny Nance, the 
CEO of Concerned Women of America, on behalf of that 
organization. Amy Kremer, chairperson of Women for America 
First, on behalf of their organization. They are both in 
support of Judge Barrett. And then a letter from Tennessee 
Secretary of State Tre Hargett, who is applauding her record on 
textualism and stands in support of her nomination.
    Chairman Graham. Without objection.
    [The information appears as submissions for the record.]
    Senator Blackburn. Judge Barrett, you have been a trouper, 
and so we are going to do a little bit of loose-end tying up 
and then get you on your way.
    And we appreciate the commitment that you have made. And 
Jesse, I will tell you what, my hat is off to you. You have 
just been great to be here today and to stand right with her. I 
tell you, I wish my husband were here. We were talking a little 
bit earlier today about, when I called him, about how you have 
been right here, hardly leaving the chair the entire time. And 
we appreciate that.
    My husband has said he is some day going to write a book, 
and he is going to call it, ``I Carried Her Purse.''
    [Laughter.]
    Senator Blackburn. Because we could not do what we do 
without supportive spouses.
    First thing I want to say, and Senator Ernst touched on 
this, our colleagues across the aisle have spent a lot of time 
talking about COVID relief and the importance of that for 
healthcare and for people that are suffering. They have the 
opportunity, we can put our bill back on the floor. They each 
chose to vote no, every single one of them, on additional PPP, 
unemployment insurance, money for testing and vaccines, getting 
schools open, and liability protection so that businesses can 
open.
    So, we would be very pleased to have that bill back on the 
floor and to pass it to get needed relief to the American 
people.
    The second thing I want to touch on, I think there has been 
a little bit of confusion on with some of the comments that 
were made. It is important to note that abortion is not 
mentioned in the U.S. Constitution.
    Judge Barrett. The word ``abortion'' does not appear in the 
U.S. Constitution.
    Senator Blackburn. That is correct. And Roe v. Wade is not 
an amendment to the Constitution?
    Judge Barrett. Roe v. Wade interprets the Fourteenth 
Amendment of the Constitution and locates the right to 
terminate a pregnancy in the liberty--in the Due Process Clause 
for liberty.
    Senator Blackburn. Correct. I think that from some of the 
comments from some of our colleagues, there has been confusion 
about that.
    The next thing is Senator Whitehouse kind of came at you, 
saying you had never tried a case, and I think it is important 
to note that Justice Kagan had never tried a case. And we want 
to have that--she has been mentioned several times today. So as 
a point of clarification, we would want to mention this.
    One thing that we have heard a good bit about at this 
Committee, and some of our colleagues chose to mention this 
yesterday, is that Republicans do not nominate enough female 
judges. But when we nominate a highly qualified woman for a 
Supreme Court vacancy, what is the very first thing they do? 
They turn their attack machine on.
    And then they start into the politics of personal 
destruction, and they attack you for not being--for not fitting 
into the paradigm of the left because you are pro-life, pro-
family, pro-religion. And we have seen this happen with other 
judges that have come before us. Judge Neomi Rao, Wendy Vitter, 
they have been criticized.
    And if you do not buy into this agenda of the left if you 
are female, then they act as if you are not a real woman. And I 
will tell you quite frankly, they do not believe that all women 
deserve to have the opportunity to have a seat at the table. It 
is only certain women, and we have seen their liberal narrative 
play out today.
    Senator Hirono really tuned up on this when she suggested 
that you, of all people, would not support women in the 
workplace. And I will tell you this. As a woman who has worked 
in the private sector and been in public service, when comments 
like that are made, it discourages all women from trying to 
step forward and trying to take the skills that they have 
developed in one area of their life and then use it as an 
opportunity to serve their Nation, to serve their community, 
because they do not want the liberal attack machine pointed at 
them.
    And I will tell you quite frankly, it is so discouraging to 
me to see groups on the left say we want diversity, but let 
that diversity come from a woman who is on the political right, 
and it is like their heads explode. They do not want that as a 
part of the conversation. What they prefer to have is that very 
narrow liberal viewpoint.
    And I look forward to the day when that will stop because 
all women deserve the opportunity to rise. And you know, I find 
it so interesting that they do not want to support women from 
the political right because we do not submit to the leftist 
agenda. We won't submit to that.
    So then free thinkers end up being called bad women and 
traitors to our gender and other disparaging comments that are 
out there. And you have endured some of these pretty 
extraordinary revelations today, many of which have involved 
accusations that you are part of some sort of backroom 
conspiracy to rig the system against the American people and 
that your record as a judge is somehow frightening and is going 
to cause a panic.
    But I have a feeling that this is not the first time you 
have heard such rhetoric or been subjected to such rhetoric by 
a group of your peers that have probably tried to hold you back 
because of your personal beliefs. I think that most of us that 
come from the political spectrum on the right have endured 
that.
    A professional organization that would have been nice to 
join, but because you are pro-life, you cannot. Opinion not 
wanted. Participation not wanted. Because you are pro-religion, 
pro-family, opinion not wanted. Do not apply for admission.
    And this is the kind of wrong-headed perceptions that need 
to stop. It is not uncommon for women who practice their faith 
or who hold pro-life views to endure this, especially in a 
professional context, and that is what we have seen the left 
throw at you today.
    And I find it so interesting that they have tried to use 
this focus to evaluate your professionalism as a judge, doing 
to you exactly what they say they despise. Interesting take.
    I would like to hear a little bit more about the 
intellectual and personal discipline you mentioned during 
Senator Lee's line of questioning. Let's go back to that.
    You said that discipline is required for, in resisting the 
urge to exercise your own will when deciding how to rule on a 
case. So talk for just a second about that, why it is important 
to stay true to your basic constitutional statutory framework 
rather than favoring the Living Constitution approach.
    Judge Barrett. Well, Senator Blackburn, I think, as it came 
up with Senator Lee and I know with Senator Sasse and Senator 
Hawley, too, that judges are not policymakers. And, you know, 
we live in a pluralistic society where we have lots of 
different views on lots of different matters, as Senator 
Kennedy was pointing out.
    And so, in a pluralistic society, you know, I may approach 
a particular problem, let us say it is a problem of 
constitutional law, and I may really feel like the result I 
want is one way. But I am just one person, and there are surely 
other people in America, other people on the bench who would 
see the best resolution going a different way.
    So, who am I, or who is any judge, to say that their 
result, like, oh, just this once or just this time I am going 
to reach the result that seems the best, even if it runs 
against the law that the people have ratified? And so it would 
be wrong because--I mean, I do not think people, I think I said 
earlier, want to live under the law of Amy. I mean, we have the 
United States Constitution, and that is what judges should be 
faithful to.
    I see Senator Kennedy does not want to live under the law 
of Amy.
    Senator Blackburn. Well, but I think probably the law of 
Amy prevails at the Barrett household----
    [Laughter.]
    Senator Blackburn [continuing]. Over those children.
    Judge Barrett. Fifty-fifty.
    Senator Blackburn. I used to tell my children--and my son's 
birthday is today, and we were chatting earlier. And we were 
laughing about how when I wanted them to do something that they 
did not necessarily want to do, I would remind them that I was 
the ``chief mama in charge.'' So it was something that was 
going to happen.
    Let me touch just a second on Obamacare because they have--
our friends across the aisle have seemed to express just a deep 
concern about a case that is coming up on November 10th, the 
severability clause and how this would take Obamacare down. 
Again, this goes into their fear-mongering and causing panic.
    And we know that because it is not about the ACA case that 
is scheduled for November 10th. This is all about their concern 
that a constitutionalist judge on the Supreme Court just might 
get in the way of their push to implement Government-run 
healthcare, to do a socialized medicine plan, or to do the 
Green New Deal, or to do statehood for DC--their wish list of 
items that they have.
    But we do, for the record, need to clean up the numbers 
that are around this. We have heard some wild numbers get 
thrown around today when it comes to the ACA.
    There are right now 8.3 million Americans enrolled in the 
ACA Marketplace Exchange, enrolled in Obamacare. So, and what 
they are doing is blowing that number up, and they have tacked 
on the entire individual market and added Medicaid and Medicare 
to get to their number that they are saying is 150 million 
Americans are going to lose their healthcare.
    What they are not saying is there are 153 million Americans 
that are in the private healthcare marketplace. So if they got 
their way, every one of those individuals in that private 
healthcare Marketplace would lose their health insurance.
    So, our goal is to make certain that all Americans have 
access to affordable healthcare, and I think it is a bit 
disingenuous the way they are--that 8.3 million is the number 
that comes to us from CMS and HHS. And then, as I said, they 
are blowing that up by adding in the entire individual market 
and Medicaid and Medicare and forgetting to mention that there 
are 153 [million] Americans that have a private health 
insurance.
    My colleague from California would really like to have 
people believe that your sole mission in life is to overturn 
the ACA, and you have stated that you are not on a mission to 
overturn the ACA.
    Judge Barrett. I am not, Senator Blackburn. And I have no 
mission and no agenda. Judges do not have campaign promises.
    Senator Blackburn. That is a good thing. And they have made 
much about a letter that you signed opposing a contraceptive 
mandate and an article that you wrote criticizing an 
interpretation of the ACA as a tax.
    Judge Barrett. Mm-hmm.
    Senator Blackburn. But I had a very interesting 
conversation today. I actually did a Facebook Live with one of 
your former students who had written an op-ed for 
RealClearPolitics. Chase?
    Judge Barrett. Mm-hmm.
    Senator Blackburn. And Chase Giacomo said one of the things 
he appreciated about you is that you made your students think.
    And I think that is a wonderful trait for a judge because 
what you did was to cause them to get into problem-solving. And 
at a time when we live in a cancel culture, that is a very 
positive thing to have students do, to cause them to think. So 
we really appreciate that.
    And I know that you have stated that you are going to put 
aside personal opinions and abide by the Constitution when it 
comes to addressing all of the cases that would come before 
you.
    Let us move on. Senator Sasse went to the Fourth Amendment 
with you, and I want to touch on this pertaining to electronic 
searches and surveillance. And the Fourth Amendment is so 
important for safeguarding the privacy of our citizens and our 
data from unreasonable searches and seizures.
    And so many Americans are doing so much of their life 
online, and I think it is imperative that Americans have the 
ability to protect their virtual ``you,'' which is their 
presence online, their data, their transactional life, and now 
for so many people, it is the way they are working. And as you 
said at the White House ceremony, the Barrett e-academy, of 
which you all co-principaled, people are going to school 
online.
    And there was a case, Carpenter v. U.S., and it outlined 
just how far the Constitution protects searches of electronic 
evidence. It was a 5-4 decision, and the Court ruled that law 
enforcement must obtain a warrant in order to track a person's 
cellular location information beyond 7 days.
    Justices Thomas and Gorsuch both dissented, and Justice 
Gorsuch objected that the majority's reasonable expectation of 
privacy standard was not faithful to the Fourth Amendment text. 
Instead, Justice Gorsuch reasoned the Fourth Amendment protects 
only those searches included in the original text: searches of 
persons, houses, places, and effects.
    Some critics of originalism complain that today's laws 
should not be governed by the dead hand of the past. Can you 
explain to us how the Fourth Amendment can still govern the 
modern world's searches and seizures, and how will it 
continue--how will it continue to apply to emerging 
technologies that the Founders never could have imagined?
    Judge Barrett. Sure. So, I think, as a general matter, you 
know, the Fourth Amendment protects against unreasonable 
searches and seizures, and it does not mean that it protects 
only the kinds of searches and seizures that those who lived at 
the time of the adoption of the Bill of Rights could have 
anticipated. So surely they could not have anticipated the 
internet or cell phones or, you know, airplanes, for that 
matter.
    But one can reason from the kinds of privacy protections 
that were in place in 1791, when the Fourth Amendment was 
ratified, to see if the search of modern technology now is 
analogous to it. So, one example is the Kyllo case. Justice 
Scalia wrote that opinion, and that is a case where law 
enforcement had used an infrared detector to see if someone was 
growing I think it was marijuana on the inside. And they could 
use the infrared to see if it lit up if people were using heat 
lamps, essentially, inside.
    Senator Blackburn. Right.
    Judge Barrett. And Justice Scalia said that, yes, that was 
a search, you know, that the Fourth Amendment did apply, and 
the police had to have a warrant. Even though that technology 
did not exist at the time, it was the same kind of invasion 
into the home, and so it did not matter that, you know, 
infrared machines were not in the contemplation of the 
generation that ratified the Fourth Amendment.
    Senator Blackburn. Okay. And then is there a difference 
between searching for data via a device that is in a person's 
possession and searching for, say, data on the servers that are 
hosting it?
    Judge Barrett. Let us see. So that would be a question I 
probably cannot answer.
    Senator Blackburn. Okay.
    Judge Barrett. In addition to the Fourth Amendment, there 
would also be statutes that, you know, govern how much data one 
could mine. So that would be one of those legal hypothetical 
situations that I would not be able to answer in the context of 
the hearing.
    Senator Blackburn. All right. Let us end it at that so that 
you can get out of here.
    There are a couple of things that tomorrow we are going to 
have time, and we will talk about a couple of those other 
questions: campus free speech, executive overreach, a couple of 
other things we would like to have on the record.
    But thank you very much for your patience and for your 
desire to serve.
    Judge Barrett. Thank you, Senator Blackburn.
    Senator Blackburn. Thank you, Mr. Chairman.
    Chairman Graham. Thanks, Senator Blackburn.
    I would like to echo what Senator Blackburn said. You have 
been very patient, very poised, and I really appreciate the way 
you have handled yourself today.
    To the Committee, I quite frankly think this has been a 
good example of what can be in the Judiciary Committee, 
challenging questions on things that matter to people in a way 
that you can leave the arena saying, well, that worked pretty 
well.
    One more day, 20 minutes apiece. See you at 9 o'clock.
    [Whereupon, at 8:15 p.m., the Committee was recessed.]
    [Additional material submitted for the record for Day 2 
follows Day 4 of the hearing.]


 
                          CONTINUATION OF THE


 
                      CONFIRMATION HEARING ON THE


 
                  NOMINATION OF HON. AMY CONEY BARRETT


 
                   TO BE AN ASSOCIATE JUSTICE OF THE


 
                   SUPREME COURT OF THE UNITED STATES

                              ----------                              


                      WEDNESDAY, OCTOBER 14, 2020

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:01 a.m., in 
Room 216, Hart Senate Office Building, Hon. Lindsey O. Graham, 
Chairman of the Committee, presiding.
    Present: Senators Graham [presiding], Grassley, Cornyn, 
Lee, Cruz, Sasse, Hawley, Tillis, Ernst, Crapo, Kennedy, 
Blackburn, Feinstein, Leahy, Durbin, Whitehouse, Klobuchar, 
Coons, Blumenthal, Hirono, Booker, and Harris.

          OPENING STATEMENT OF HON. LINDSEY O. GRAHAM,
        A U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA

    Chairman Graham. Good morning. Welcome, Judge.
    Judge Barrett. Good morning.
    Chairman Graham. Thank you. Welcome to all my colleagues. 
It was a long day, but I thought a productive day. We have 20-
minute rounds, and hopefully, we can be done in time before 
dinner tonight. And we'll plow ahead and have a few breaks 
along the way.
    So, a couple observations from yesterday. There is an 
opportunity here to explore the nominee's thinking, to the 
extent she can share her thoughts without deciding a particular 
case that comes before her. Senator Harris, who I respect, 
suggested you were not candid. And Judge Barrett, I could not 
disagree more.
    I think I've been here for a few of these. I have voted for 
every nominee that has come before the Committee. I think you 
have one thing in common. All of you, you are highly qualified, 
capable people.
    I saw that in Justice Sotomayor and Justice Kagan, 
submitted by President Obama. I definitely did not share their 
legal philosophy. I expected them to be fairly solid votes for 
the liberal side of the Court, and generally speaking, they 
have been, but they have done so honorably.
    I think they have kept their commitment to be fair and 
impartial, but we do understand judicial philosophy matters. 
There are differences. I think everybody in America can get 3 
hours of credit for originalism. It is the most detailed 
explanation of a legal philosophy I think any nominee has 
provided to the Senate, and I appreciate that.
    Senator Harris mentioned about how much more candid Justice 
Ginsburg was. And with all due respect to Senator Harris, I do 
not agree with that. I think Justice Ginsburg established the 
``Ginsburg rule'' for a reason, but what she cited in terms of 
evidence of candor was a very articulate statement by Justice 
Ginsburg as to why she embraced the pro-choice point of view. 
That is not being candid about the law. That is being candid 
about who you are.
    I think it's pretty clear to everybody who's been watching 
these hearings that you and your family are pro-life, that you 
are a practicing Catholic, and you adhere to the tenets of your 
faith. But I hope people also understand that you have made a 
pledge to the Committee, and to the country at large, that you 
will set aside whatever religious views you have when it comes 
time to decide the law.
    There has already been an example in the Seventh Circuit 
where you upheld a legislative provision that restricted access 
to abortion clinics in terms of protesting. I think it is the 
``bubble case.'' So I am highly confident that you will judge 
every American based on their case, not the law of Amy.
    And here is what is important to me. Justice--excuse me, 
Senators Blackburn and Ernst are two conservative women on this 
Committee. It is a very give-and-take society called America, 
but there is one group in America I think has had a hard time 
of it, and that is conservatives of color and women 
conservatives. There is an effort by some in the liberal world 
to marginalize the contribution because you come out on a 
different side of an issue, particularly abortion.
    So, this hearing, to me, is an opportunity to not punch 
through a glass ceiling, but a reinforced concrete barrier 
around conservative women, and you are going to shatter that 
barrier. I have never been more proud of a nominee than I am of 
you. You have been candid to this body about who you are, what 
you believe. You have been reassuring in your disposition.
    And this is history being made, folks. This is the first 
time in American history that we have nominated a woman who is 
unashamedly pro-life and embraces her faith without apology, 
and she's going to the Court. A seat at the table is waiting on 
you, and it will be a great signal to all young women who share 
your view of the world that there is a seat at the table for 
them.
    This will not be celebrated in most places. It will be hard 
to find much commentary about this moment in American history. 
But in many of our worlds, this will be celebrated. This has 
been a long time coming, and we have arrived.
    So, I want to thank President Trump for giving you the 
opportunity to showcase your talents. I believe that Justices 
Sotomayor and Kagan were incredibly qualified women of great 
character, disposition, and integrity, and I believe the same 
about you.
    So, let us talk a little bit about yesterday. Obamacare. 
This hearing has been more about Obamacare than it has you. 
Obamacare is on the ballot. If you want socialized, single-
payer healthcare, that is on the ballot.
    Why do many of us object to Obamacare? It was written and 
passed on a partisan line, I think, on Christmas Eve. Most big 
changes in society have more buy-in than that. You are talking 
about one-fifth of the American economy, and as I said 
yesterday, from a South Carolina point of view, this has not 
worked out well.
    We started with 5 Exchanges. We are down to 1--you have 1 
choice. Four rural hospitals have closed. Premiums have gone 
up, not down, by an average of 30 percent.
    And when you look at the formula used by Obamacare, I can 
understand why Senator Harris likes it the way it is. I can 
understand why Chuck Schumer likes it the way it is. Three 
States get 35 percent of all Obamacare dollars--New York, 
California, and Massachusetts. They are 22 percent of the 
population.
    In South Carolina, if you had a per-patient formula--no 
matter where you live, you got the same contribution from the 
Federal Government--South Carolina would receive almost an 
additional billion dollars. I do not blame California, New 
York, and Massachusetts for wanting more. People in South 
Carolina should blame me and Senator Scott for accepting that 
construct.
    So, when it comes to healthcare, we all have our different 
positions, but today is about you, and today is about whether 
or not you are qualified to serve on the highest court in the 
land.
    Severability. Can you tell me again--I know you have been 
asked a hundred times--the doctrine of severability, what does 
it mean?
    Judge Barrett. So the doctrine of severability----
    Chairman Graham. Push the red button.
    Judge Barrett. Okay. Can you hear me now?
    Chairman Graham. Think so. No, I cannot hear you now.
    Judge Barrett. It is not----
    Chairman Graham. There we go. There we go.
    Judge Barrett. Okay.
    Chairman Graham. There we go.
    Judge Barrett. So the doctrine of severability is a 
doctrine essentially of statutory interpretation. And what it 
means is if you have a statute--and the Affordable Care Act is 
obviously a very long statute--if there is one provision within 
the statute that is unconstitutional, the question is whether 
that one section can simply be rendered null and excised from 
the statute, severed, so that the rest of the law stands, or 
whether that provision is so central to the statute that its 
unconstitutionality, like once it is pulled out, the whole 
house of cards collapses.
    And the presumption is always in favor of severability. It 
is a question of your intent. The Court looks----
    Chairman Graham. But----
    Judge Barrett. I am sorry. Go ahead.
    Chairman Graham. But the main thing is the doctrine of 
severability has a presumption to save the statute, if 
possible. Is that correct?
    Judge Barrett. That is correct.
    Chairman Graham. So, I want every conservative in the 
Nation to listen to what she just said. The doctrine of 
severability presumes and its goal is to preserve the statute, 
if that is possible. So from a conservative point of view, 
generally speaking, we want legislative bodies to make laws, 
not judges. Is that correct?
    Judge Barrett. That is correct.
    Chairman Graham. And would it be further true that if you 
can preserve a statute, you try to, to the extent possible?
    Judge Barrett. That is true.
    Chairman Graham. Okay. That is the law, folks.
    Abortion. You were read some statements by, I think it is 
Saint--what is the name of the pro-life group county?
    Judge Barrett. The St. Joseph County Right to Life.
    Chairman Graham. Okay. And you were asked by Senator 
Blumenthal, who I respect, whether or not their policy 
positions were illegal. Do you remember that?
    Judge Barrett. I remember him asking me whether I accepted 
other policy positions on in vitro fertilization and whether it 
was a rejection of Roe.
    Chairman Graham. Yes. Well, I remember an exchange where 
they took a statement from that group or some other group 
arguing for the criminalization, remember that, the 
criminalization of IVF. Is that right?
    Judge Barrett. Yes, I think so.
    Chairman Graham. Okay. And here is my problem with that 
analysis. That was a position taken by a pro-life county 
organization. It is not your job to pass judgment on the 
thoughts and beliefs of Americans, is it, as a Supreme Court 
Justice?
    Judge Barrett. No, it is not.
    Chairman Graham. So, when they argue that something should 
be criminal, they have a right to make that argument. Right?
    Judge Barrett. They do. It also was not in the ad that 
appeared next to the statement, I think.
    Chairman Graham. Yes. The main thing is how does something 
become criminal in our legal system in America?
    Judge Barrett. When a legislative body passes a statute.
    Chairman Graham. So, here is what I want you to know. 
Statements by political organizations are not law, and what 
we've tried to do yesterday was turn a pro-life group into a 
legislative body and tried to get you to rule on their beliefs. 
I think that is a dangerous thing for Americans to be asking a 
judge to do, whether you are on the right or the left, here is 
a statement from an organization I do not particularly agree 
with, and I want you to pass judgment as to whether or not that 
is legal.
    The question for you would be, if some legislative body 
tried to criminalize this procedure, then that would be subject 
to litigation in the Court. Is that correct?
    Judge Barrett. That is correct.
    Chairman Graham. A case in controversy does not arise 
because you disagree with a statement of a private person or a 
private group. Is that correct?
    Judge Barrett. That is correct.
    Chairman Graham. A case in controversy arises around 
criminal law when somebody--some body passes a criminal 
statute. Is that correct?
    Judge Barrett. That is correct.
    Chairman Graham. Then and only then would you determine the 
constitutionality of that provision. Is that correct?
    Judge Barrett. Well, actually, not even then. The statute 
would have to be enforced against somebody. So a prosecutor 
would have to try to hold someone criminally liable for getting 
IVF, for example.
    Chairman Graham. So the case in controversy concept would 
have to mature?
    Judge Barrett. Yes, there would be quite a lot of 
maturation required.
    Chairman Graham. Yes, before it got to the Supreme Court, 
if it ever did. So I just want every American to know it is not 
the judge of the--it is not the role of a Supreme Court Justice 
to pass judgment on your opinions. It is the role of a Supreme 
Court Justice in very limited circumstances to pass judgment on 
laws passed by legislative bodies and, in other circumstances, 
regulation, I would suppose.
    Now, voting. Is it appropriate for legislative bodies to 
protect the integrity of the ballot box?
    Judge Barrett. So, any specific measures that legislative 
bodies took to protect the integrity of the ballot box could be 
subject to litigation, subject to challenge. So----
    Chairman Graham. And that is right. And as they are 
developed, the courts will hear cases if cases and 
controversies arise. Right?
    Judge Barrett. Yes.
    Chairman Graham. One of the reasons we do not have an 
agreement with the House is in their $2.2 trillion package, 
they are mandating ballot harvesting as a national policy. I 
think it is ripe for fraud. We have seen evidence of ballots 
being placed in people's cars and dropped in ditches. So I 
think there will be an effort, I hope, to protect the integrity 
of the ballot and also ensure easy voting. I do not think they 
are contrary goals for the Nation.
    Now, when it comes to being on the Court itself and 
collaborating with other members of the Court, what has your 
experience been at the Seventh Circuit level? How has that 
played out?
    Judge Barrett. It is so collegial. We all collaborate. I 
have the greatest respect and have had wonderful interactions 
with every single one of my colleagues.
    Chairman Graham. Do you think you have the capability to 
fit in at the Supreme Court?
    Judge Barrett. I hope so.
    Chairman Graham. Okay. So we have talked a lot about laws 
legalizing same-sex marriage. What is the name of the case?
    Judge Barrett. Obergefell.
    Chairman Graham. Okay. And you would--if anybody tried to 
change that precedent, one of the things you would look at is a 
reliance interest that people have formed around that piece of 
legislation?
    Judge Barrett. Yes.
    Chairman Graham. Same with Casey and Roe?
    Judge Barrett. Yes.
    Chairman Graham. So reaching a decision that the case was 
wrongly decided does not end the debate in terms of whether or 
not it should be repealed. Is that correct?
    Judge Barrett. That is correct.
    Chairman Graham. And there is a very rigorous process in 
place to overturn precedent?
    Judge Barrett. There is. Many factors, reliance being one.
    Chairman Graham. Okay. Is there any constitutional right to 
a polygamist relationship?
    Judge Barrett. Let us see, that might be a question that 
could be litigated at--you know, polygamy obviously in many 
places is illegal now, but that could be an issue somebody 
might litigate before the Court at some point.
    Chairman Graham. Somebody might make the argument it is 
possible for three people to love each other genuinely, and 
that would work its way to the Court, if somebody wanted to 
make that argument. Is that correct?
    Judge Barrett. Somebody could, yes, make that argument.
    Chairman Graham. So you have been asked a lot about Roe v. 
Wade and Casey, and one of the differences between Brown v. 
Board of Education and Roe line of cases is there is active 
litigation regarding Roe. Is that correct?
    Judge Barrett. That is correct.
    Chairman Graham. I think Senator Hirono named 8 or 9 
different cases that may come up to the Court, cases in 
controversy, and one of the reasons you cannot tell us how you 
would rule is because there is active litigation coming to the 
Court. Is that correct?
    Judge Barrett. That is correct.
    Chairman Graham. And one of the reasons you can say with 
confidence that you think Brown v. Board of Education is super-
precedent is that you are not aware of any effort to go back to 
the good old days of segregation by a legislative body. Is that 
correct?
    Judge Barrett. That is correct. I have also said in 
lectures that Brown was correct as an original matter. So that 
is the kind of thing, since I have said it in writing, I felt 
like I could express before the Committee.
    Chairman Graham. When it comes to Heller, there are 
legislative bodies all over the country passing laws regarding 
gun ownership. Are you aware of that?
    Judge Barrett. I am aware of that.
    Chairman Graham. Okay. When it comes to Citizens United, I 
think there will be some efforts after this election to maybe 
revisit that case. So the thing that I am trying to establish 
here is that Heller, Citizens United, Roe, Casey are all 
actively being litigated because legislative bodies are playing 
in that arena. Is that a fair statement?
    Judge Barrett. That is a fair statement.
    Chairman Graham. So, your point to us is when it is likely 
that case and controversies around the holding of a particular 
case are going to come to the Court, there is only so much you 
can tell us about what you may or may not do?
    Judge Barrett. Absolutely.
    Chairman Graham. So that Roe v. Wade compared to Brown v. 
Board of Education is not super-precedent?
    Judge Barrett. Not super-precedent, as I was using that 
term in the articles that have been referred to.
    Chairman Graham. And let me tell you from a commonsense 
point of view why it is not super-precedent. I have 
legislation. Fourteen States have passed a law that I am trying 
to get passed up here that in the fifth month of pregnancy, 20 
weeks, an unborn child is capable of feeling pain. I am making 
the argument there is a compelling State interest to protect 
that unborn child from a very painful death called abortion.
    There's only seven nations on the entire planet that allow 
abortion on demand in the fifth month. Now that is a political 
exercise we are going through. Fourteen States have passed a 
version of what I have just described.
    That will be coming to the Court, I would imagine, in the 
future. All I ask is that--will you listen to both sides of the 
argument if it gets to you?
    Judge Barrett. I will.
    Chairman Graham. Thank you.
    Judge, all I can say, I have met a lot of people in this 
business, and very impressive people. One of the highlights of 
my time on the Committee is to get to meet incredibly talented, 
smart, squared-away people.
    Justice Roberts sat right before you and did not have a 
note. A lot of people on my side are upset with him about this 
or that. Sometimes I disagree with him, but I do know this, 
that he is doing what he thinks is best for the Court and for 
the country.
    Justices Sotomayor and Kagan. Delightful people, incredibly 
wickedly smart. Justice Kagan had a biting sense of humor. And 
they are on the Court because they should be.
    They are on the Court because they live lives worthy of 
being on the Court. They are on the Court because they are some 
of the smartest people in the land about the law. They are on 
the Court because they have lived incredibly productive and 
meaningful lives. Justices Gorsuch and Kavanaugh are both on 
the Court for the same reasons.
    As to you, you are every bit in their league. In my view, 
this is exactly where you should be going, to the Supreme 
Court, that the United States of America will benefit from your 
participation at the Supreme Court. You will offer a point of 
view that millions of Americans share.
    You will have life experiences that will round out the 
Court. You will apply the law to the facts. And that you are 
going to inspire a lot of young women, just like Justice 
Ginsburg did, just like Justices Sotomayor and Kagan did. And 
the young women that you are going to inspire do not have a 
whole lot of role models they can point to in terms of the 
media world in which we live in uplifting them. That is about 
to change.
    To my Democratic colleagues, I understand where you are 
coming from. I understand what you want the Court to do. You 
want the Court to do things differently than we do. I do not 
question your motives, and I want to thank you for conducting 
this hearing in a way that has been respectful, has been 
challenging, and the process will be moving forward here.
    And from the Committee's point of view, I think we are on 
track to do it in a way that, hopefully, people will say even 
though you disagree strongly, you are not that disagreeable.
    Senator Feinstein.
    Senator Feinstein. Thanks very much, Mr. Chairman.
    Judge, I must say I am delighted to see your family here 
again, and I hope they feel that very special sense of pride in 
you. I am sure they do. And I think, you know, I was thinking 
of my children and grandchildren, and this is really a once-in-
a-lifetime occasion. So, I hope they find it very special in 
their lives.
    Judge Barrett. Thank you, Senator.
    Senator Feinstein. You are welcome.
    Yesterday, you spoke of California v. Texas, the current 
case seeking to strike down the Affordable Care Act. You said, 
I think, that the issue before the Court is severability, 
meaning whether the Court can still uphold the Affordable Care 
Act if it rules that the individual mandate is 
unconstitutional. And you said yesterday this question was not 
before the Court.
    As I understand this, Chief Justice Roberts and the 
majority did involve the issue of severability in a case known 
as the NFIB--National Federation of Independent Business v. 
Sebelius. There, the Chief Justice and the 5-4 majority that 
included Justice Ginsburg struck down one part of the law, the 
Medicaid expansion provision, but allowed the rest of the law 
to stand because they found it was severable from the portion 
they struck down.
    Justice Scalia dissented from this conclusion, stated that, 
quote, ``The unconstitutionality of the individual mandate and 
the Medicaid expansion requires the invalidation of the 
Affordable Care Act's other provisions,'' end quote. In other 
words, the Justice believed that the law was not severable and 
the entire law had to be struck down, including provisions 
protecting people with pre-existing conditions. You have been 
close to the Justice's philosophy, and in these hearings, you 
have also said that this does not mean you would reach all the 
same conclusions. So, can you explain to us today how you would 
disagree or agree with Justice Scalia's view of severability in 
that NFIB--National Federation of Independent Business case?
    Judge Barrett. What I think I can say without expressing 
disagreement or agreement, for the reasons I said yesterday not 
being able to grade precedents, the severability issue--first 
of all, the majority holding, as you recognized, was that even 
though the Medicaid provision was unconstitutional, it was 
severable. So Justice Scalia expressed his view in dissent.
    Even by Justice Scalia's view, the issue would be different 
in California v. Texas for two reasons. One, Justice Scalia 
thought two provisions of the Constitution were 
unconstitutional. So if you picture severability being like a 
Jenga game, it is kind of if you pull one out, can you pull it 
out while it all stands? Or if you pull two out, will it still 
stand? So Justice Scalia, his view, was that if you pulled 
those two provisions out, could it still stand? And here, we 
are talking about one. And also, Congress has amended the 
statute since NFIB v. Sebelius, and it zeroed out the mandate. 
So now, I mean, California v. Texas involves a different 
provision because of the zeroing out that was done by 
amendment. So that is how the two cases present slightly 
different issues.
    Senator Feinstein. What do you think of all that?
    Judge Barrett. What do I think of----
    Senator Feinstein. Yes.
    Judge Barrett. Of severability or----
    Senator Feinstein. In that instance.
    Judge Barrett. I think the doctrine of severability, as it 
has been described by the Court, you know, serves a valuable 
function of trying not to undo your work when you would not 
want a court to undo your work. Severability strives to look at 
a statute as a whole and say, would Congress have considered 
this provision so vital that, kind of in the Jenga game, 
pulling it out, Congress would not want the statute anymore? So 
it is designed to effectuate your intent.
    But, you know, severability is designed to say, well, would 
Congress still want the statute to stand even with this 
provision gone? Would Congress have still passed the same 
statute without it? So I think insofar as it tries to 
effectuate what Congress would have wanted, it is the Court and 
Congress working hand-in-hand.
    Senator Feinstein. Thank you. That is quite a definition. I 
am really impressed. Thank you.
    Some have argued that the Medicare program is 
unconstitutional because--well, it is an unconstitutional 
exercise in congressional spending power. They believe that the 
spending power does not exist at all.
    In talking about Medicare and Social Security, Professor 
Mike Rappaport of the University of San Diego Law wrote this. 
``It is worth remembering that these programs would never have 
taken their pernicious form if the Constitution's original 
meaning had been followed in the first place.''
    Do you agree with originalists who say that the Medicare 
program is unconstitutional, and if so, why?
    Judge Barrett. I am not familiar with that article by 
Professor Rappaport. So I do not know what reasoning he 
advances for claiming that the spending power as exercised in 
things like the Medicaid provision would be unconstitutional.
    Senator Feinstein. Well, it is in Law and Liberty, July 23, 
2015. But the question is, do you agree with originalists who 
say that the Medicare program is unconstitutional?
    Judge Barrett. Well, let's see, so I think I cannot answer 
that question in the abstract, you know, because, as we have 
talked about the ``no hints, no forecasts, no previews'' rule, 
I also do not know what the arguments would be. So, I assume 
Professor Rappaport lays out a case, but it is not a question 
that I have ever considered before. But if I did consider it, 
it would be in the context of an actual case or controversy.
    Senator Feinstein. Well, I thank you, but it is hard for me 
to believe that that is a real question because I think the 
Medicare program is really sacrosanct in this country.
    But let me ask you, last April, in the midst of the COVID-
19 pandemic, the Supreme Court prevented Wisconsin from 
implementing a district court order that would have extended 
the State's deadline for submitting absentee ballots. This 
would have given voters greater flexibility in casting absentee 
ballots for Wisconsin's primary election.
    Justice Ginsburg dissented. She criticized the Court's 
majority for putting its head in the sand with regard to the 
risks posed by COVID-19. She emphasized that courts and 
election officials must be able to react to a grave, rapidly 
developing public health crisis. And she noted that the Supreme 
Court's, quote, ``suggestion that the current situation is not 
substantially different from an ordinary election boggles the 
mind,'' end quote.
    Would you agree, and what is your position?
    Judge Barrett. Well, Senator Feinstein, that is obviously a 
very recent case. And, you know, in that case, the Court had to 
address, you know, the constitutional question. And so, again, 
it is one of those things that I cannot answer, both because it 
would be requiring me to grade and express agreement or 
disagreement with a Supreme Court opinion, but also it is the 
kind of case that could come up in a closely related form 
either on the Seventh Circuit--you know, Wisconsin is within 
the Seventh Circuit's jurisdiction--or on the Supreme Court.
    Senator Feinstein. Okay, let me try again with something. 
After President Trump announced your nomination to the Supreme 
Court, you discussed the judicial philosophy of the late 
Justice Antonin Scalia. Specifically, you stated, ``His 
judicial philosophy is mine.''
    During oral arguments in the 2013 case, Shelby County v. 
Holder, Justice Scalia questioned the strong congressional 
support for reenactment of the Voting Rights Act. He argued 
that this support was not attributable to the fact that we need 
the Voting Rights Act. Rather, he stated that he believed 
Congress reenacted the bill due to a, quote, ``phenomenon that 
is called perpetuation of racial entitlement,'' end quote.
    What is your reading of this and your understanding of the 
history of the Voting Rights Act?
    Judge Barrett. Well, when I said that Justice Scalia's 
philosophy is mine, too, I certainly did not mean to say that 
every sentence that came out of Justice Scalia's mouth or every 
sentence that he wrote is one that I would agree with. When I 
said Justice Scalia's philosophy is mine, too, what I meant is 
that his jurisprudential approach to text, as we have talked 
about originalism and textualism, is the same that I would 
take.
    And I think as for the Voting Rights Act, I think that it 
was obviously a triumph in the civil rights movement.
    Senator Feinstein. Well, the question arises in my mind. Of 
course, my view is that we always need this. This is a bulwark 
of our democracy. So need, I think, is something that may be 
somewhat subjective. Do you agree with that?
    Judge Barrett. That need is subjective?
    Senator Feinstein. Yes. That I think we do need a Voting 
Rights Act, and it is subjective in that sense.
    Judge Barrett. Well, I think, Senator Feinstein, the 
question of how the coverage formula is calculated in the 
Voting Rights Act and the contours of the Voting Rights Act and 
whether Shelby County was rightly decided or not are all 
questions on which I cannot give an answer because Shelby 
County has obviously been controversial. It is likely to be 
relitigated. It could come up before me on the Court.
    Senator Feinstein. Well, let me give you--because I think 
this is really important because it shows the basic 
philosophical bent of an individual. For me, the Voting Rights 
Act is extremely important, and it defines our election system 
to a great extent. It is hard for me to understand that anyone 
would want to do away with it. What is your position in that 
regard?
    Judge Barrett. As I understand Shelby County, it said that 
the coverage formula was outdated from the 1960s for subjecting 
particular States, requiring them to get preclearance. It is my 
understanding--and I have not looked at the case in a while--
that everything else about the Voting Rights Act remained 
intact, including its prohibitions on discrimination in 
elections. It was just the coverage formula, which decided 
which States were subject to preclearance.
    Senator Feinstein. Well, let me ask you this question, and 
this is a hard one. Do you agree with Justice Scalia's 
assertion that the Voting Rights Act is a, quote, 
``perpetuation of racial entitlement,'' end quote?
    Judge Barrett. Well, Senator Feinstein, I cannot--I don't 
obviously know what Justice Scalia was thinking when he said 
that, and any characterization of the Voting Rights Act or a 
statement like that is simply really not something I can opine 
on because, you know, that is tied in, I would think, with the 
Shelby County questions.
    Senator Feinstein. Well, can you opine--I am not asking for 
a formal opinion, but would you believe that it is a 
perpetuation of racial entitlement?
    Judge Barrett. Well, Senator Feinstein, I think that goes 
to the question of whether the coverage formula was outdated 
and needed to be updated from the 1960s or not. I take that to 
be the thrust of the disagreement in Shelby County and the 
position that Justice Scalia was taking. So, again, I cannot 
express a view on Shelby County and whether the majority or 
dissent had the better of the argument.
    Senator Feinstein. Okay. Let me move on to workers' rights 
and age discrimination. In a 2019 case, Kleber v. CareFusion 
Corporation, you joined a majority of the Seventh Circuit 
judges in holding that age discrimination in employment does 
not protect job applicants against employment practices that 
have a disproportionately harmful impact on older applicants.
    The opinion you joined, as I understand it, dismissed a 
claim brought by a 58-year-old lawyer who was passed over for a 
job that was offered to a 29-year-old applicant with less 
experience.
    I think I am concerned by the implications of the decision. 
According to AARP, approximately 35 percent of the United 
States population is now 50 years or older. Almost 29 percent 
of households are headed by someone near or past retirement age 
who have no savings or pension.
    According to the EEOC, study after study has shown age 
discrimination, quote, ``remains a significant barrier for 
older workers,'' end quote. And older applicants are more 
frequently denied job interviews than middle-aged applicants. 
Additionally, older and middle-aged women are subjected to more 
age discrimination than men.
    The EEOC has found that the Great Recession during 
President Bush's administration, quote, ``forced many older 
workers to revise their retirement plans to work longer to 
recoup drained retirement accounts and lost savings.''
    So, here is the question, because I think it is going to be 
an increasing problem for the Court. What do you understand to 
be the purpose of the Age Discrimination in Employment Act?
    Judge Barrett. Well, in Kleber v. CareFusion, I joined a 
majority of the en banc court. So that was a case that we heard 
as a full court, and the question is whether the prohibition on 
age discrimination covered applicants or only employees. And 
the statute said employees, and so an applicant is not an 
employee. So the majority said that the statute by its terms 
did not cover the conduct.
    But I think that's an instance, you know, I talked 
yesterday quite a bit about whose role it is to update statutes 
or extend them, and I think that's an instance in which 
Congress could well address this problem by amending the 
statute to include applicants in it.
    Senator Feinstein. So, where would you stand on the general 
subject matter?
    Judge Barrett. Well, since I cannot impose the law of Amy, 
that would be up to the Congress to decide, or many State 
legislatures have different anti-discrimination prohibitions 
that offer even more protection than some Federal statutes.
    Senator Feinstein. Okay. Let's talk for a moment. In 2013, 
you wrote, and this is a quote, ``I tend to agree with those 
who say that a Justice's duty is to the Constitution and that 
it's thus more legitimate for her to enforce her best 
understanding of the Constitution rather than a precedent she 
thinks clearly conflicts with it.''
    If you are presented with a case where your view of the 
Constitution conflicts with Supreme Court precedent, what will 
control your decision, your understanding of the Constitution 
or precedent?
    Judge Barrett. Senator Feinstein, I am really glad that you 
brought that up because that quote was mentioned a lot 
yesterday, and I am happy to have an opportunity to explain the 
context.
    Senator Feinstein. Good.
    Judge Barrett. That entire article, I mean, I think that 
there has been some misunderstanding perhaps because that 
sentence--first of all, it was citing a footnote to both an 
originalist scholar and a progressive constitutionalist. But 
the whole article was defending the Supreme Court's current 
doctrine, which accords constitutional precedent weaker stare 
decisis effect than, say, statutory precedent--and I mentioned 
that yesterday--against claims that we should have no doctrine 
of stare decisis at all and against claims that it should be 
absolute and completely tie the Court's hands.
    So, I actually was not arguing for any alteration to stare 
decisis doctrine. I was saying this is how it is, this is how 
the Supreme Court does it, and that is right. And another 
couple of sentences in there which I think might put my 
perspective in context, I said, ``A new majority cannot impose 
its vision only with votes. It must'' --now I am paraphrasing 
myself. It must be very sure that its interpretation of the 
Constitution is the right one and that reliance interests, et 
cetera, do not counsel in favor of its overruling, paraphrased. 
And then the next sentence was something to the effect of an 
uncertainty in that regard counsels in favor of preserving the 
status quo.
    So that sentence, if it is just read alone, makes it sound 
like I am arguing for the overthrow of stare decisis in 
constitutional cases altogether, but that was not the thrust of 
the article. Quite to the contrary.
    Senator Feinstein. Thank you. Thank you very much. And we 
all welcome the fact that your family is here. It is a 
beautiful family.
    Judge Barrett. Thank you so much.
    Senator Feinstein. Take care, everybody.
    Judge Barrett. Thank you, Senator.
    Senator Feinstein. Thanks, Mr. Chairman.
    Chairman Graham. Thank you very much. Senator Grassley.
    Don't start the clock yet. He is not ready. For 5 bucks, I 
won't start the clock.
    [Laughter.]
    Senator Grassley. Judge----
    Chairman Graham. Start the clock.
    [Laughter.]
    Senator Grassley [continuing]. Welcome back.
    Judge Barrett. Thank you, Senator.
    Senator Grassley. I want to compliment you for doing a very 
good job answering our questions about your decision-making 
process. You have been forthright, candid, thoughtful. You have 
demonstrated a tremendous command of and respect for the law 
and Constitution. You have shown us that your judicial method 
is rigorous, but also fair and open minded.
    Above all, it's clear that you understand the appropriate 
role of a judge, just what we are looking for, at least on this 
side of the aisle. An individual who will interpret the law, 
not make it. You are an outstanding candidate.
    A couple things before I ask my questions.
    First, Judge, many of my colleagues on the other side have 
tried to get you to tell us how you will rule in a case. 
Whether you believe a case was correctly decided, or whether 
you will commit to uphold a specific law.
    As you have responded, it is not appropriate for you or any 
nominee in your position, for any level of the judiciary, to 
make promises or give hints on how you would rule or what you 
think about a potential issue that may come up before you.
    Judicial independence from the legislative and executive 
branches, those are our political branches accountable to the 
people, is a bedrock principle of our constitutional system.
    Justice Ginsburg said it best. A judge is sworn to decide 
impartially and can offer no forecasts or hints because that 
would show disregard for a particular case. And she also said 
it would display disdain for the entire judicial process.
    You testified that you have not made any promises to anyone 
about how you might rule on a case that might come before you. 
Because you know that a judicial nominee should never promise 
votes in exchange for a President's nomination or a Senator's 
support.
    Moreover, we saw yesterday and to some extent Monday, the 
Democrat strategy continues to be to use scare tactics, 
distortions, and speculation. They are framing you as a real 
threat to healthcare coverage, and especially protections for 
existing conditions. This is all a charade just because of your 
comment I believe just from one law review article you wrote 
critiquing Chief Justice Roberts' reasoning.
    So, it's time to get real. This is all just a distraction.
    This is what we saw Monday and Tuesday. Democrats want to 
distract from the fact that they don't really care about 
Obamacare.
    You heard that since Democrats started their Presidential 
primaries probably about 2 years ago. They want Government-run 
Medicare for all.
    That's what you heard in the Democrat primary. The changes 
they seek to the ACA move America closer to a single-payer 
system where the Government provides or subsidizes healthcare 
for all Americans, which we know eventually leads to Government 
rationing of healthcare.
    Democrats want to distract from the fact that they just 
filibustered a COVID relief bill that would have protected pre-
existing conditions. Next Monday, we will see if they will vote 
for a COVID recovery bill that Leader McConnell has scheduled 
for a vote next week.
    Democrats want to distract from the fact that Republicans, 
yes, Republicans, have introduced bills to protect Americans 
with pre-existing conditions and to bring down drug prices.
    And if we act, they don't have to worry about you doing 
away with pre-existing conditions in some future case down the 
road.
    In fact, given the opportunity to advance the bipartisan 
Prescription Drug Pricing Reduction Act, that's the Grassley-
Wyden bill, Democrats at Schumer's command walked away because 
they wanted an election year issue. Republicans passed and 
signed into law bills to end pharmacy gag clauses and to end 
abusive drug company tactics to prevent generic drugs coming to 
market.
    Democrats want to distract from the fact that President 
Trump and the administration have taken steps to help lower 
healthcare costs for Americans, including finalizing a rule to 
allow the importation of prescription drugs from Canada, and 
proposing a rule to facilitate the purchase of affordable 
insulin and EpiPens for lower-income Americans.
    The President has signed an Executive order to end surprise 
billing. Further, I and other Republicans have been working 
with the administration to increase transparency and drug 
pricing, to step up enforcement against anticompetitive 
activity and prosecution of bad actors in the healthcare 
industry, and to improve and expedite the approval of drugs to 
combat COVID and other diseases.
    Here is the bottom line of what we have all heard Monday 
and Tuesday.
    The Democrats cry foul over anything that may help 
Americans if it doesn't advance their agenda for Medicare for 
all. And the American people deserve to be reminded of what 
this hearing is all about.
    It's all about your qualifications to be on the Supreme 
Court.
    It's not about healthcare advocacy.
    Finally, Judge, Democrats want to distract from the fact 
that you are eminently qualified for this position you have 
been nominated for. And they don't like it that you know that 
the place of the Court is not to rewrite laws as you might see 
fit.
    Here is the bottom line. I have asked you yesterday if it's 
your agenda to repeal the Affordable Care Act. You said, quote, 
unquote, ``absolutely not.'' You said you never made a 
commitment to anyone on the Affordable Care Act or on any 
matter. You have never been asked to make such a commitment, 
and you made very clear you would never make such a commitment.
    Mr. Chairman, I want to put some letters in the record from 
State legislative leaders supporting this nominee.
    Chairman Graham. Without objection.
    [The information appears as submissions for the record.]
    Senator Grassley. Now, you won't get away without me asking 
some questions on some things that I am very interested in. I 
would like to discuss a law that I brought up with you when we 
talked for a short period of time, one-on-one. We didn't 
discuss it in depth at that time. The False Claims Act.
    In 1986, we passed legislation that I drafted to make False 
Claims Act an effective tool to combat fraud against Federal 
programs. This law enlisted the help of private citizens to 
enforce the False Claims Act through lawsuits.
    In 2009, the Supreme Court deemed the False Claims Act qui 
tam provisions constitutional. As you know, the False Claims 
Act has emerged as the Government's primary weapon against 
fraud.
    Since we restored the law in 1986, False Claims actions 
have recovered $68 billion of taxpayers' money fraudulently 
taken, with $50 billion coming from whistleblower-initiated 
actions. Congress has remained vigilant to protect the False 
Claims Act from attempts to weaken it in the courts.
    Have you ever written or spoken publicly about the 
constitutionality of qui tam or any other provisions of the 
False Claims Act, and, if so, what were the circumstances or 
the context?
    Judge Barrett. Senator Grassley, I do not recall ever 
speaking about the False Claims Act or the constitutionality of 
the qui tam provisions or any other part of the Act. So I 
cannot think of a time when I have.
    Senator Grassley. Do you have any ideas about the False 
Claims Act that would impact your ability to impartially decide 
cases involving those issues?
    Judge Barrett. I do not. In a case involving that Act, I 
would approach with an open mind as with any other.
    Senator Grassley. Some opponents of the False Claims Act 
argue that qui tam provisions are unconstitutional under 
Article II and III. Are you familiar with these legal 
arguments? And if so, do you have an opinion on that?
    Judge Barrett. Are you talking about the qui tam 
challenges?
    Senator Grassley. Yes.
    Judge Barrett. Well, those are not ones that I can express 
an opinion on because, as you say, they have been up before the 
Court.
    Senator Grassley. Another interest of mine, at 87 years of 
age, is cameras in the courtroom and I introduced legislation 
on that in the last 15 years.
    It's not a very popular subject. Justice Souter joked that 
they would have to roll over his dead body before they put 
cameras in the Supreme Court.
    While I can respect that point of view, I totally disagree. 
Many of us believe that allowing cameras in the courtroom would 
open the courts to the public and bring about a better 
understanding of the judiciary.
    For many years, that bill that I have introduced has been 
called the Sunshine in the Courtroom Act, a bill to give judges 
the discretion to allow media coverage of Federal court 
proceedings. I'm also a Co-Sponsor of Senator Durbin's bill to 
allow cameras in the Supreme Court.
    I understand that the Seventh Circuit Court of Appeals, 
where you currently serve, adopted procedures to allow requests 
for video recording of oral arguments as well as public release 
of the recordings.
    Judge Barrett. That's correct.
    Senator Grassley. Has your court had any problems with 
these procedures? What are your views on allowing cameras in 
the courtroom? If confirmed, would you keep an open mind about 
allowing cameras in the Supreme Court?
    Judge Barrett. I would certainly keep an open mind about 
allowing cameras in the Supreme Court.
    Senator Grassley. I always ask nominees for district, 
circuit, or Supreme Court this question about international 
law. I would like to get your views on how and when you would 
apply international law to your decision-making process.
    Is it ever appropriate to cite international law when 
interpreting the U.S. Constitution?
    Judge Barrett. Well, I would never want to say never 
because it's certainly possible. Generally speaking, so, it's 
been applied--in the issues with which foreign law has been 
applied, and there is a debate about it, are when we're trying, 
or when the Court is trying or lower court is trying to 
identify what is the nature of a right that is part of the 
tradition of the people or that the people like, what would the 
people view, and in my view, the United States Constitution is 
a compact, and it is the fundamental law of the American 
people.
    And so, I don't think it would be controlled by the laws 
passed by other countries because it reflects the fundamental 
commitments that we, as an American people, have made.
    Senator Grassley. Thank you very much. I reserve my time.
    Chairman Graham. Senator Durbin.
    Senator Feinstein. No, Senator Leahy.
    Chairman Graham. Oh, I am sorry. I apologize, Senator 
Leahy. Out of sight, out of mind. I apologize.
    Senator Leahy. Okay. Thank you. Can you hear me all right?
    Chairman Graham. Yes, sir. Loud and clear.
    Senator Leahy. Incidentally, for those who are watching and 
think that we may be polarizing things, I listened to what 
Senator Grassley said about cameras in the courtroom, and, of 
course, I agree with him on that, and he knows I have supported 
that. I have also joined him in a few of the False Claims Act 
improvements. There aren't many areas in our Committee where 
Senators have worked together.
    And I would ask, Mr. Chairman, if I could, unanimous 
consent, to submit a letter from 10 former Federal judges who 
are opposed to the process of this nomination, along with 
letters of opposition to the nomination from People for the 
American Way, NARAL, and 208 women lawyers, that they be 
inserted in the record.
    Chairman Graham. Without objection.
    [The information appears as submissions for the record.]
    Senator Leahy. Somebody is going to hand you those letters. 
I can't quite reach from my room here.
    Now, Judge Barrett, it is good to see you again. Again, I 
commend your children. I am sure this is fascinating but I am 
sure it is a long day, and I am sure you probably felt the same 
way. But this is part of democracy and it is important that we 
have these questions.
    Now we are being told that no one could possibly know how 
you would rule in the latest Republican-led case to overturn 
the Affordable Care Act. But what we do know is that you 
criticized Chief Justice Roberts' opinion in NFIB v. Sebelius. 
You stated that, quote, ``Roberts pushed the ACA beyond its 
plausible meaning to save the statute.'' And then you praised 
the dissent in King v. Burwell.
    So, it seems every time you have weighed in on the legality 
of the statute you come to one conclusion, the Affordable Care 
Act is unconstitutional.
    Now, over the past 2 weeks you have provided this 
Committee, all of us, with some 1,800 pages of your writings 
and speeches for us to review, and I have. Now I may have 
missed something in that, but did you ever write or speak out 
in defense of the ACA?
    Judge Barrett. Senator Leahy, I just wanted to make one 
correction. King v. Burwell wasn't a case about whether the 
Affordable Care Act was constitutional or not. That one was 
purely a question of statutory interpretation. So just to make 
clear about that.
    Senator Leahy. But you did praise the dissent, and not 
the----
    Judge Barrett. I did, and in a radio interview I said that 
I thought the dissent had the better of the statutory 
interpretation argument.
    I have a couple of things, I guess, that maybe might help 
shed some light on this question. One is that, of course, in 
both of those contexts, I was speaking as an academic, and as I 
mentioned yesterday, an academic serves a very different 
function than a judge. So an academic doesn't go through the 
judicial process, doesn't hear the case or controversy, have 
the litigants and the briefs and the consultation with 
colleagues.
    Senator Leahy. Judge, we all understand that, but that is 
not my question. My question was did you ever write or speak 
out in defense of the ACA, whether as an academic or as a 
member of the judiciary? That is a pretty simple question. It 
can be answered yes or no.
    Judge Barrett. No, I have never had occasion to speak----
    Senator Leahy. Thank you.
    Judge Barrett. On a policy question.
    Senator Leahy. And so every time you have weighed in on it 
you said the law is unconstitutional. Now----
    Judge Barrett. No. Sorry, I thought you were done.
    Senator Leahy. Well, in the Court, you, of course, have to 
under--prescribe applicable severability standing, 
constitutionality, and you haven't written on severability of 
the ACA. Have you?
    Judge Barrett. I have not.
    Senator Leahy. Thank you.
    Now, here is a quote that I am sure you are familiar with 
in preparing for this, and it has been used in the last few 
days. The quote is, ``Throwing out preclearance when it has 
worked and is continuing to work to stop discriminatory changes 
is like throwing away your umbrella in a rainstorm because you 
are not getting wet.'' Have you heard that quote before?
    Judge Barrett. I believe that is from the dissent in Shelby 
County.
    Senator Leahy. By Justice Ginsburg. Is that correct?
    Judge Barrett. I believe so.
    Senator Leahy. Actually it is. She was talking about and 
warning about striking down Section 5 of the Voting Rights Act. 
Now Shelby County was almost like immediately after Shelby 
County came down States started making changes. Twenty States 
enacted new restrictions on voting, and some of those 
restrictions have been horrendous. Do you know how many polling 
places have arbitrarily been closed across the country since 
the Shelby decision?
    Judge Barrett. I do not know, Senator Leahy.
    Senator Leahy. I'll help you there. It's at least 1,600. 
Now, following the Shelby decision, do you know how many voters 
were purged from voting rolls?
    Judge Barrett. I do not know.
    Senator Leahy. Roughly 16 million. That is about 30 times 
the population of my State. African Americans with felonies are 
four times more likely to be disenfranchised than other 
Americans with felony convictions, and non-white voters are 
seven times more likely to wait in line for more than an hour 
than--I mean, Black voters wait longer in line than white 
voters. I mention this because----
    [Photograph is displayed.]
    Senator Leahy [continuing]. This is a picture from Cobb 
County, Georgia. Look at the lines. African Americans make up 
the majority. Look at that line. I suspect neither you nor I 
have ever had to wait in line like that to vote. In fact, the 
press reported that today those lines could be 10 hours long.
    You know, people talked about, well, are we giving racial 
entitlement. This is not entitlement for any Americans. This is 
not entitlement. This is turning our back on democracy. This is 
saying you can't vote, or we're going to make it so difficult 
for you to vote, you can't. Harris County in Texas, which has a 
population many times that of my State, has one early voting 
spot. People have to drive for hours and wait in line for hours 
to get there.
    Would you accept the fact, or would you acknowledge the 
fact that communities of color disproportionately face 
restrictions and obstacles when they are casting their ballots?
    Judge Barrett. Senator, I wasn't aware of the statistics 
that you were citing to me. If it became relevant in any case 
that was litigated before me and was presented to me, I would, 
of course, have an open mind about it.
    Senator Leahy. Well, I am talking about this because I know 
you have spoken on feeling much like former Justice Scalia, 
who, I note, was a friend of mine. But I disagreed with him on 
many things. He talked about racial entitlement. It is not 
racial entitlement when Blacks have to stand in line for 10 
hours to vote. And Justice Ginsburg, of course, dissented in 
Shelby. She knew what the consequences would be. I only mention 
that because it is okay for a judge not to close his or her 
eyes to reality.
    Now, I asked you last week what a Justice Barrett would do 
if a President, or even a Senator, did not follow a Supreme 
Court decision. You declined. You said the question may come 
before you. I then asked if the Supreme Court would have a 
final word. You stated the Supreme Court would have the final 
word as far as the lower courts are concerned, and that 
surprised me, and it concerned me, and I will tell you why. I 
asked Justice Gorsuch and I asked Justice Kavanaugh those 
questions. I asked them what happens and they made it clear 
that a President cannot refuse to comply with a court order, 
and the Supreme Court's word is the final word on that matter. 
That is what Justice Gorsuch and Justice Kavanaugh said.
    So, I would ask you this. Do you agree that a President 
must follow a court order and the Supreme Court's word is 
final, or is the Supreme Court's word only final as far as the 
lower courts are concerned?
    Judge Barrett. Senator Leahy, I am glad to have the 
opportunity to clarify from our conversation. First, I know 
that both Justices Gorsuch and Kavanaugh said that no man is 
above the law, and I agree with that. But I conversed with 
Senator Lee yesterday about Federalist 78, which says that 
courts have neither force nor will. In other words, we can't do 
anything to enforce our own judgments.
    And so, what I meant in the conversation with you is that 
as a matter of law the Supreme Court may have the final word, 
but the Supreme Court lacks control over what happens after 
that. The Supreme Court, and any Federal court, has no power, 
no force, and no will, so it relies on the other branches to 
react to its judgments accordingly.
    Senator Leahy. I remember as a young law student having 
lunch--our honor society at Georgetown occasionally would have 
lunch with members of the Supreme Court. I sat with Justice 
Hugo Black. He told me what happened with Brown v. Board of 
Education. And the Court knew that was going to be a very, very 
tough case. And what did they do? They waited until they had a 
unanimous opinion because they knew that the President would 
have to, and the Congress would have to enforce their law.
    So, let me ask you this. Of course, the Supreme Court has 
no army, they didn't have no force, but they do have a force of 
law. And, is a President who refuses to comply with a Court 
order a threat to our constitutional system of checks and 
balances?
    Judge Barrett. Senator Leahy, I think the example of Brown 
is a perfect one in this instance, because the Supreme Court, 
in Brown, of course, held that segregation violated the Equal 
Protection Clause. That was the law, but as you know there was 
resistance to that decision. And so it wasn't until the 
National Guard came in and forced Governor Faubus to allow 
desegregation that it could happen because the Supreme Court 
couldn't do so itself. And in Cooper v.----
    Senator Leahy. I understand that, but they made the order, 
and could a President--if a President refused to follow what 
they have said, could that be a threat to our constitutional 
form of government?
    Judge Barrett. Well, as I said, the Supreme Court can't 
control whether or not the President obeys. Abraham Lincoln 
once disobeyed an order during the Civil War of a circuit 
court. So a court can pronounce the law and issue a judgment 
but it lacks control over how the political branches respond to 
it.
    Senator Leahy. Let me ask you a specific that has come up. 
President Trump claims he has an absolute right to pardon 
himself. Now, for 200 years the Supreme Court has recognized 
common law principle that nobody can be a judge in their own 
case. I had to go way back and reread Calder v. Bull to see 
that. But would you agree, first, that nobody is above the law, 
not the President, not you, not me? Is that correct?
    Judge Barrett. I agree. No one is above the law.
    Senator Leahy. And does a President have an absolute right 
to pardon himself for a crime? I mean, we heard this question 
after President Nixon's impeachment.
    Judge Barrett. Senator Leahy, so far as I know that 
question has never been litigated. That question has never 
risen. That question may or may not arise, but it is one that 
calls for legal analysis of what the scope of the pardon power 
is. So because it would be opining on an open question when I 
haven't gone through the judicial process to decide it, it is 
not one on which I can offer a view.
    Senator Leahy. Okay. And so, but it--you were going to say 
that no person, not you, not me, not a President, is above the 
law. I find your answers somewhat incompatible, but those are 
your answers. You have a right to say what you want.
    But now you are an originalist. Can you explain why the 
Framers include the Foreign and Domestic Emoluments Clauses in 
the Constitution?
    Judge Barrett. I think I could speak generally to what is 
the well-accepted view that the Foreign Emoluments Clause, it's 
plain from that text that it is designed to prevent foreign 
influence in government affairs.
    Senator Leahy. It is sort of the anticorruption clause of 
the Constitution, isn't it?
    Judge Barrett. I am sorry. Could you repeat that question?
    Senator Leahy. It is sort of what you would say it is the 
anticorruption clause in the Constitution.
    Judge Barrett. I don't know if I would characterize it as 
an anticorruption clause. I think I would characterize it just 
as I did, which one, from its very text, you can see is 
designed to prevent foreign countries from having influence.
    Senator Leahy. I was thinking of what, at the 
Constitutional Convention, Governor Edmund Randolph said, ``The 
clause was thought proper in order to exclude corruption and 
foreign influence, prohibit anyone in office from receiving or 
holding any emoluments from foreign states.'' And now we find 
that 200 companies and foreign governments have patronized 
Trump properties at the same time they were getting benefits 
from him and the administration. The first 2 years of his 
Presidency, he earned $73 million for his properties abroad, 
and originalists, as you are, do you think these companies and 
foreign governments would have fallen within the Framers' zone 
of concern in writing the Emoluments Clause?
    Judge Barrett. Senator, the Emoluments Clause, it is under 
litigation. There was a Fourth Circuit case that recently 
involved this question. So as a matter that is being litigated 
it is very clear that that would be one I can't express an 
opinion on, because it could come before me.
    Senator Leahy. I found it interesting what you have written 
about stare decisis and precedent, and it seems that you are 
willing to depart from it, and as a Justice, I suppose you 
could do what you want.
    But in June Medical Services, Chief Justice Roberts joined 
the majority and struck down a Louisiana law restricting access 
to reproductive services, even though he had dissented in a 
previous case, striking down a very similar Texas law. He said 
the legal doctrine of stare decisis requires us, absent special 
circumstances, to treat cases alike. So having been on the 
losing side on the first one he became--he took that position 
of that case. Do you agree that he demonstrated a commitment to 
stare decisis in this case?
    Judge Barrett. Well, Senator, no Justice that I am aware of 
throughout history has ever maintained the position that 
overruling a case is never appropriate. As you probably know, 
there is a Supreme Court case that said that States could 
criminalize sexual conduct between same-sex couples, and 
Lawrence v. Texas overruled that case; Plessy v. Ferguson was 
precedent, and Brown v. Board of Education overruled it.
    So, the Supreme Court has always said that in some cases 
overruling precedent is the right course for the Court to take, 
but that it is not done willy-nilly.
    Senator Leahy. I would urge you to read what Chief Justice 
Roberts said at the opening of the African-American Museum in 
the Smithsonian about following precedent.
    I realize my time is up. I'm going to--I will submit a 
question to you because I wonder what restrictions you see in a 
President's authority under Executive Order 12333 to conduct 
surveillance activities that haven't been authorized by 
Congress. I ask that because Senator Lee and I and others have 
got a lot of legislation on surveillance, and now we question 
whether that's being ignored.
    So, I hope you will take it as a serious question and 
answer it for the Committee.
    Judge Barrett. Thank you, Senator Leahy.
    Chairman Graham. Thank you. We will make sure that happens, 
Senator Leahy. Senator Cornyn.
    Senator Cornyn. Mr. Chairman, I would ask unanimous consent 
that three letters I have here in my hand be made part of the 
record, please.
    Chairman Graham. Without objection.
    [The information appears as submissions for the record.]
    Senator Cornyn. Thank you.
    Good morning, Judge.
    Judge Barrett. Good morning, Senator.
    Senator Cornyn. I would like to wax philosophical with you 
for a few minutes, and you don't need your notepad.
    [Laughter.]
    Senator Cornyn. I just think there has been so much 
discussion about the role of judges and the role of the 
political branches, I think maybe it is worth going back to 
first principles. And to me the most important first principle 
is in the Declaration of Independence where it says, ``We hold 
these truths to be self-evident, that all men are created 
equal, that they are endowed by their creator with certain 
unalienable rights, that among these are life, liberty, and the 
pursuit of happiness. That to secure these rights governments 
are instituted among men,'' and here is the most important part 
I want to emphasize, ``deriving their just powers from the 
consent of the governed.''
    Now, you and I talked a little bit about ``consent of the 
governed'' as being the very foundation of the legitimacy of 
government action. Do you agree with that?
    Judge Barrett. I do agree with that.
    Senator Cornyn. And does that inform your philosophy when 
it comes to the appropriate role of judges and the political 
branches, like the Congress?
    Judge Barrett. Yes, it does.
    Senator Cornyn. I had the great privilege of serving on the 
State court bench for 13 years, and so when I came to Congress 
I had never served in the legislature before, and so it was 
quite an eye-opening experience for me. For example, after one 
vote on the Senate floor, after the vote was over, one Senator 
got to the microphone and he said, ``Now for a little 
legislative history.'' That was kind of shocking to me, but you 
understand where I am getting at. And one reason why I 
appreciate your approach and Justice Scalia's approach to 
statutory interpretation and emphasis on the text rather than 
legislative history, this is a way for somebody who lost the 
vote to come in and try to then tilt the scales of justice in 
their favor by adding some ex parte legislative history.
    And then imagine my shock when I served, as I do now, on 
the Finance Committee. When we mark up legislation in the 
Finance Committee we don't actually get to look at legislative 
text. It is kind of surreal. They called it a ``notional 
markup.'' In other words, we end up voting on sort of a notion 
or concept and then somebody in the leg counsel's office writes 
up the text. Very strange.
    And then there is this issue of, I know in the judiciary, 
and in the legal profession generally, there has been a big 
movement toward plain language, so people can understand 
clearly. You have to unlearn some of the lessons you learned in 
law school, particularly writing on law reviews and the like, 
where you seemingly are rewarded for this really obtuse, 
impenetrable language, and, of course, where you use Latin 
phrases and things like that. But the plain language movement 
in the legal profession strikes me as a very important 
movement, and I yearn for those days when perhaps Congress can 
embrace that so we can speak more clearly so more people can 
understand and not delegate our legislative responsibilities to 
staff.
    But I also was struck by the fact that one of the reasons 
why cases get litigated is because of the failure of the 
Congress to build consensus for legislation. And to me the 
Affordable Care Act is one example of that. When either side 
pushes through a partisan piece of legislation it is not 
realistic to expect that the fight will be over. It will just 
move to a different form. It will move to the courts.
    That is not what happened on things like Medicare and 
Social Security. There was built a broad bipartisan consensus. 
In other words, Members of Congress actually did the hard work 
to find that consensus so that they didn't have to hand it off 
to the judiciary.
    And, unfortunately, I think we have seen a tendency in 
recent years to do exactly that, where Congress has abdicated 
its responsibilities--well, figuratively, let me say, pulled 
the pin on a hand grenade and then handed it to the judiciary, 
and say, ``You figure it out.''
    And maybe, just maybe, that is one reason why these 
judicial confirmation hearings have become so contentious, 
because people actually see the judiciary as the ultimate 
policymaker. And as was quoted, I think, Justice Scalia talking 
about the value judgments of judges versus those of the 
citizenry or elected representatives, and he said that there is 
no reason to think that the value judgments of the judiciary 
are any better than those of the citizens that ultimately--in 
whom resides the ultimate legitimacy and political power.
    And, of course, the most fundamental difference, I guess, 
between the job that you currently hold and the one that you 
will hold on the Supreme Court is the notion of accountability. 
As a judge you serve for lifetime tenure. Correct?
    Judge Barrett. Correct.
    Senator Cornyn. You don't have to stand for election.
    Judge Barrett. No.
    Senator Cornyn. You don't have to raise money.
    Judge Barrett. No.
    Senator Cornyn. You don't have to consult polls.
    Judge Barrett. No.
    Senator Cornyn. Focus groups?
    Judge Barrett. No.
    Senator Cornyn. Well, how in the world do you decide a case 
if you don't consult with public opinion, polls, focus groups, 
or the like?
    Judge Barrett. Well, the reason we have life tenure as 
Federal judges is to be insulated from the pressure that such 
things like focus groups or polls or public opinion might--the 
pressure that it might apply for a court to decide a case a 
particular way or the other. That is why we decide it according 
to the text.
    Senator Cornyn. Well, and there are various rules of the 
road, so to speak, for how the judiciary approaches cases. 
Right?
    Judge Barrett. Correct.
    Senator Cornyn. In other words, perhaps the most 
fundamental difference is that rather than making broad policy 
pronouncement you decide cases. Correct?
    Judge Barrett. That is correct.
    Senator Cornyn. And, in fact, I am struck by a New York 
University Law Review article by Justice Ginsburg in--I forgot 
what year it is--but where she talks about Roe v. Wade, and she 
talks about what she called the ``breathtaking decision'' 
versus the Court's more cautious dispositions. She said, 
``Suppose the Court had stopped after rightly declaring 
unconstitutional a portion of the law, and had not gone on, as 
it did in Roe, to fashion a regime blanketing the subject, a 
set of rules that displaced virtually every state law then in 
force. Would there have been the twenty-year controversy we 
have witnessed, reflected most recently in the Supreme Court's 
splintered decision in Planned Parenthood v. Casey? . . . might 
have served to reduce rather than to fuel controversy.''
    Well, I think what she is saying is when the courts step in 
and basically take over by stating a constitutional rule, it 
really prevents the very people who are elected by voters from 
making policy. Correct?
    Judge Barrett. Correct.
    Senator Cornyn. And there are a number of other things 
other than the requirement of a case or controversy that keep 
the judiciary in its appropriate lane, things like standing 
requirement.
    Judge Barrett. Yes.
    Senator Cornyn. What is standing?
    Judge Barrett. Standing means that you can't just come to 
court, say, because you dislike Senator Graham's Fetal Pain 
Act. You can't just walk into the door of the courthouse and 
say, ``I don't like that Act and I think it is 
unconstitutional.'' Standing means that you actually have to 
have suffered what the law calls a ``concrete injury.'' So it 
has to have affected you in some way. So that means that there 
are real litigants with a live controversy before the court. 
People can't come to court to air policy disagreements only.
    Senator Cornyn. And then there is a requirement of 
ripeness. What is ripeness?
    Judge Barrett. Ripeness means that there has to be a live 
controversy. You can't run to the courthouse door and file a 
lawsuit until it is ripe, which means that the injury I was 
talking about has actually come to fruition, come to pass.
    Senator Cornyn. And, of course, by the time you see it, on 
the circuit court, the case has already had to have been tried 
by a trial court. Correct?
    Judge Barrett. That is correct.
    Senator Cornyn. And then there is a record. Right?
    Judge Barrett. Yes.
    Senator Cornyn. And what encompasses a record that the 
trial court prepares, that you review as an appellate judge?
    Judge Barrett. Well, there will be factual parts of the 
record. So if there was a trial there will be a very lengthy 
transcript of that trial. A district court makes a number of 
legal rulings in the course of a case, so the court may have 
ruled on, say, a motion to dismiss and whether the law even 
permitted this--whether the law gave the plaintiff a valid 
claim. The court may have ruled on a motion for summary 
judgment, which means that is an evaluation of whether the 
plaintiff or the defendant could win the case without even 
going through a full trial, because the law was clear enough.
    So, there are many things along the way. There are 
evidentiary rulings, legal rulings, a factual record that 
develops, and in some instances it is quite long.
    Senator Cornyn. And as an appellate judge on the Seventh 
Circuit you can't go outside the record, can you?
    Judge Barrett. You can't. The record can't be expanded on 
appeal.
    Senator Cornyn. And that is true in the Supreme Court as 
well?
    Judge Barrett. Yes.
    Senator Cornyn. And so all of these rules of the road, I 
will call them, things like the case or controversy 
requirement, ripeness, standing, being confined to a record 
that is then the sole focus of an appellate review, do all of 
those things--are all those sort of indications of how the 
judicial decision-making process is different from the 
legislative process?
    Judge Barrett. Yes, and it can take years for a case to 
wind itself through that process. So as opposed to policymakers 
that don't have to wait on real parties and real disputes, and 
the parties get to shape the case their way, they get to decide 
what legal issues they are going to contest, and that narrows 
what the court can do, so policymakers, you know, if you had, 
you know, enough agreement to pass something you could just do 
it in 1 day, you know, just enact the law, enact the policy, 
and that is definitely not how judicial decision-making works.
    Senator Cornyn. Well, I know that you have followed the 
same rule as Justice Ginsburg in not expressing opinions on 
cases that might come before the Court. Is this another 
practical reason why you can't predict how you will rule in the 
future, because you don't know what the facts of that case may 
be? You don't know what the issues and controversy might be? So 
how in the world could you sit here and basically tell us about 
what your policy will be without knowing all of that?
    Judge Barrett. I couldn't, and I think when Justice 
Ginsburg said it would show disregard for the judicial process 
and even disregard for litigants, what she was getting at is 
that it would signal to litigants, listen, all the briefs and 
stuff you file in a case, that doesn't really matter because 
judges just have a gut reaction, they just--you know, they know 
what they think, and this is all just going through the 
motions. But that is not how the judicial process should work, 
or does work.
    Senator Cornyn. There is no reason to believe that a 
judge's gut reaction is any better than any other American 
citizen's reaction, is there?
    Judge Barrett. No, and the judicial process, I described 
this a little bit yesterday, a judge needs to have an open mind 
every step of the way. So as I said, I have changed my mind at 
oral argument even after reading the briefs. I have changed my 
mind at conference after consulting with my colleagues. So if I 
were to just say how I thought I would resolve a case just 
because I saw the issue, it would be short-circuiting that 
whole process through which I should go and have an open mind 
and be open to persuasion.
    Senator Cornyn. Well, I don't see any of the big blow-ups 
or charts here today about individuals that were the subject of 
the stories that our Democratic friends were telling yesterday. 
Maybe we will see them later.
    Senator Whitehouse. Got one right now.
    [Laughter.]
    Senator Cornyn. But to me, the--but the idea that some case 
that you might decide in the future, that you have not had a 
chance to go through this analysis of, and predicting how you 
might rule in the case, is that even possible?
    Judge Barrett. It is not possible because I don't know 
whether my mind could be changed at some step along the way. 
And if I did it, I think I said yesterday, I would be kind of 
like a legal pundit, just commenting on things in real time, 
and I don't think anyone wants judges to function that way. 
They want judges to go through the process, take things 
seriously, do a lot of research, do a lot of writing, keep an 
open mind.
    Senator Cornyn. And where in the Constitution does it 
authorize a judge to be a legal pundit and just make policy 
pronouncements separated from all of these requirements?
    Judge Barrett. Well, Article III prohibits it. Insofar as 
Article III, the court has said prohibits Federal courts from 
issuing what are called advisory opinions. And that means that 
when there is no real case in front of you, no real case or 
controversy, then you can't just offer an advisory opinion that 
is not the resolution of a case to express your view of the 
law.
    Senator Cornyn. So it is not fair, is it, to suggest that 
by confirming you to this position you are somehow going to 
adversely impact the lives of these individuals.
    Judge Barrett. Well, as I said yesterday, what I can say is 
that I have certainly no agenda. I am not on a mission. I am 
not hostile to the ACA at all. And if I were on the Court and 
if a case involving the ACA came before me, I would approach it 
with an open mind, just like I do every case, and go through 
the process that we have just discussed.
    Senator Cornyn. And again, referring back to what Justice 
Ginsburg said in this New York University Law Review article, 
if judges restrict themselves to deciding cases or 
controversies as opposed to making broad policy announcements 
and displacing legitimate dispute, debate, negotiation, and 
legislation, does that encourage more litigation and 
dissention, or does it resolve it?
    Judge Barrett. Well, without commenting on what Justice 
Ginsburg said about Roe v. Wade in particular----
    Senator Cornyn. No, I am not talking about that. I am 
talking about generally speaking.
    Judge Barrett. Just as a general matter, the case or 
controversy requirement, insofar as it ties the court to the 
particular litigants and to the particular issue presented in 
the case--in fact, the Supreme Court has a rule that it will 
not consider questions outside of the question presented in the 
case, absent unusual circumstances. And so that means that the 
Court can't reach out and decide other issues that might be in 
the case if it didn't grant cert on them.
    And so I think incremental decision-making or a court 
limiting itself to the issues actually presented is one way 
that the court tries to respect this constraint on its power, 
that it is only actually resolving the cases right in front of 
it.
    Senator Cornyn. And getting back to the Declaration of 
Independence and the source of governmental legitimacy, this 
structure, these arrangements are not made to benefit you or 
the courts or to benefit us. They are to benefit the American 
people by making sure that they are the ones who are the source 
of political power. Do you agree with that?
    Judge Barrett. All provisions in the Constitution are there 
to benefit the people.
    Senator Cornyn. And so if the Court rules on a statute, we 
can change the statute, but if the Court says something is 
unconstitutional, you can amend the Constitution to change that 
ruling. The people could do that. Right?
    Judge Barrett. Yes, they could.
    Senator Cornyn. So the American people are the final word.
    Judge Barrett. Yes.
    Senator Cornyn. Mr. Chairman, I will yield.
    Chairman Graham. Thank you.
    Senator Durbin.
    Senator Durbin. Thanks, Mr. Chairman.
    Judge Barrett, good to see you again.
    Judge Barrett. Good morning.
    Senator Durbin. Thank you.
    You are making history. You are the first--I wish the 
Senator from Idaho could hear this--you are the first nominee 
for a vacancy on the Supreme Court to be considered after July 
1st of the election year. In fact, you are the first nominee to 
ever be considered in the midst of an election. I don't know if 
that has ever happened before. It certainly hasn't in modern 
history.
    And the obvious question is, why? What is the hurry? Why 
couldn't we wait until the end of November, or December, or 
even January, after leaving a vacancy on the Court for 10 
months after Antonin Scalia's passing?
    Well, because there is a political agenda here, and whether 
you are privy to it, part of it, notwithstanding, it has to do 
with the Affordable Care Act. November 10th is the absolute 
date. They have to fill the vacancy. If the President, and 
those who support him, and those who support the Republican 
platform, are going to keep their promise to end the Affordable 
Care Act, they need that ninth Justice, and that is why it has 
to be hurried.
    Unfortunately, that is the cloud, the orange cloud, over 
your nomination as it comes before us here in the Senate 
Judiciary Committee, and it raises many questions. I would like 
to confine my first part of these questions to what is going on 
across America as we meet here today. There is an election 
going on. People are trying to vote. And there are a lot of 
issues out there that are being debated and somewhat resolved 
or unresolved every single day.
    The President continues to lie about paper ballots, saying 
that they are fraudulent and people shouldn't use them. There 
are still long lines, unforgivably long lines for people who 
just want to exercise their right to vote, the governed who 
want to give their consent, Senator Cornyn. There is a battle 
royal over the Postal Service and whether it is going to be 
implicated in some effort to slow down or stop ballots from 
being delivered. One ballot collection box in Harris County, 
Texas, for more than four million people? One box? It is pretty 
clear what is going on here. It is an effort to make it 
difficult to vote, even for those who are legally entitled.
    Historically, the Republican Party has started using a 
tactic of discouraging voters. We have seen this, making it 
more difficult, reducing the period of time that people can 
vote early, requiring IDs, even if there is no evidence of 
fraud, purging the rolls of names. This is all going on. So I 
want to confine my questions at the outset here on the question 
of voting.
    And let me start with what many people read this morning, 
and I did, which was a summary of one of the exchanges 
yesterday here in the Committee. Senator Feinstein, who said, 
``President Trump made claims of voter fraud and suggested he 
wanted to delay the upcoming election.'' Senator Feinstein then 
asked you, ``Does the Constitution give the President of the 
United States the authority''--listen closely to what she asked 
you--``to unliterally delay a general election under any 
circumstances? Does Federal law?'' Your answer: ``Well, 
Senator, if that question ever came before me I would need to 
hear arguments from the litigants, read briefs and consult my 
law clerks, talk to my colleagues, go through the opinion-
writing process.'' You went on to say you didn't want to give 
off-the-cuff answers like a pundit but rather approach matters 
with an open mind.
    Is that still your response?
    Judge Barrett. Senator, I have given that response to every 
hypothetical that I have been asked in the hearings, and as I 
said yesterday, I do that regardless of whether it is easy or 
hard. I don't do that to try to--whether the question, I mean, 
would be easy or hard. I don't try to do that to signal it, but 
I do that because it would be inappropriate for me to make a 
comment. And I don't think I have answered any legal 
hypotheticals, in keeping with the Justice Ginsburg rule.
    Senator Durbin. So, I guess what troubles me is this. You 
style yourself an originalist, textualist, factualist, whatever 
the term is, which means you go right to the words and try to 
understand the words and their original meaning. And so, if I 
changed Senator Feinstein's question and didn't ask you whether 
the President has the authority to unilaterally delay a general 
election, if I asked you instead, does the President have the 
authority to unilaterally deny the right to vote to any person 
based on their race, what would your answer be?
    Judge Barrett. Well, Senator, obviously there are many laws 
in effect, including the Equal Protection Clause, which 
prohibits discrimination on the basis of race, including the 
Fifteenth Amendment, which protects the right to vote against 
discrimination, based on race. And so there is a principle in 
constitutional law called external constraints, and even if one 
evaluates what the authority a branch might have to act, there 
are external constraints that press in from other parts of the 
Constitution. Here it would be the Fourteenth and Fifteenth 
Amendments.
    Senator Durbin. Well, of course it would. The Fifteenth 
Amendment: ``The right of citizens of the United States to vote 
shall not be denied or abridged by the United States or any 
State on account of race.'' For an originalist and a 
textualist, that is clear text, as I see it, but when asked 
whether or not the President has any authority to unilaterally 
deny that right to vote for a person based on race or even 
gender, are you saying you can't answer that question?
    Judge Barrett. Senator, I just referenced the Fourteenth 
and Fifteenth Amendments, the same one that you just repeated 
back to me, that do prohibit discrimination on the basis of 
race and voting. So as I said, I don't know how else I can say 
it, the Constitution contains provisions that prohibit 
discrimination on the basis of race and voting.
    Senator Durbin. But whether a President can unilaterally 
deny, you are not going to answer yes or no?
    Judge Barrett. Well, Senator, you have asked a couple of 
different questions about what the Senator--what the President 
might be able to unilaterally do, and I think that I really 
can't say anything more than I am not going to answer 
hypotheticals.
    Senator Durbin. It strains originalism if the clear wording 
of the Constitution establishes a right, and you will not 
acknowledge it.
    Judge Barrett. Well, Senator, it would strain the Canons of 
Conduct, which don't permit me to offer off-the-cuff reactions 
or any opinions outside of the judicial decision-making 
process. It would strain Article III, which prevents me from 
deciding legal issues outside the context of cases and 
controversies, and as Justice Ginsburg said, it would display 
disregard for the whole judicial process.
    Senator Durbin. So then let's take it to the case we have 
discussed before, Kanter v. Barr.
    Judge Barrett. Okay.
    Senator Durbin. Your 37-page dissent in this case.
    Judge Barrett. Mm-hmm.
    Senator Durbin. And yesterday, the junior Senator from 
Missouri, in attempt to rehabilitate the witness, asked you, 
``You never say that the right to vote is somewhat secondary or 
less than any other right. Is that fair to say?'' And you 
answered, ``Yes, that is fair to say. I never said that.''
    I have read and reread this. I am not ready for a question 
on the final, but I read and reread your dissent on this. I 
would like to read to you what you wrote on this very question 
asked by the Senator from Missouri. ``In sum''--well, I think 
we need to establish what this case is about, for those who may 
not know or remember.
    Rickey Kanter--Rickey Kanter was a con man. Lived in 
Wisconsin. He manufactured some kind of shoe insert, a pad, and 
tried to sell it to people who had diabetes or some foot 
problems. He wanted Medicare to say that it was approved. They 
didn't. He sold it anyway and made that representation. When it 
was all over it came crashing around him. He cheated Medicare 
out of $375,000. He was found guilty of a count of mail fraud, 
paid $300,000 in penalties and fines. He paid out $27 million 
in a civil settlement and then spent a year in Federal prison.
    So, this was not some run-of-the-mill miscreant. This was a 
fellow who was a con artist. He came to the Federal courts and 
said, ``This is unfair. I have served my year in prison. Now I 
want to buy a gun. And the law says I can't buy a gun if I am 
guilty of a felony.'' And the court said, ``Sorry, Rickey. You 
can't buy a gun because you are guilty of a felony.'' Even the 
Heller decision, Justice Scalia, said that felonies and mental 
illness could continue to disqualify a person from buying a gun 
in this country. Two out of three judges who heard this case 
said, ``That's right. That's the law. Sorry, Rickey, no AK-47 
for your birthday.''
    But then you took a look at it and reached the opposite 
conclusion, and did extensive research and delving into history 
about whether or not violent felonies should be distinguished 
from regular felonies. And you concluded that you believed that 
a person who had just been found guilty or convicted of a 
felony should not be disqualified from their Second Amendment 
rights, that that should be confined to those who were 
dangerous, guilty of a violent felony.
    Here is what you said, to go to the question that was asked 
by the Senator from Missouri. Here are your words: ``In sum, 
the available evidence suggests the right to arms differs from 
rights that depend on civic virtue for enjoyment. The Second 
Amendment confers an individual right, intimately connected 
with the natural right of self-defense and not limited to civic 
participation. By the very terms of the civic rights argument, 
then, the right to arms would have been treated differently 
than things like the right to vote or sit on juries.''
    So, here is what it boils down to. After Heller, after the 
decision, after Scalia's statement, you concluded that any 
felony can take away your right to vote, but only a violent 
felony can take away your right to purchase an AK-47. Why?
    Judge Barrett. Senator, with respect, that is distorting my 
position. What I said in that case, which is what Heller said 
and which is conventional in all discussions of this, to my 
knowledge, is that the right to vote is fundamental. However, 
it is an individual, fundamental right that we possess, but we 
possess it as part of our civic responsibility for the common 
good. The same thing is true, for example, of jury service, 
whereas individual rights--and this is, again, a distinction 
that is drawn in caselaw, individual rights benefit more the 
individual.
    And the entire dispute in Heller was that the majority 
thought that the Second Amendment was an individual right, and 
the dissent thought it was one that was a civic right, that was 
a right that people possessed but they possessed for the 
benefit of society by participation in the militia. And it is a 
distortion of the case to say that I ever said that voting is a 
second-class right. That is simply not what that passage means.
    Senator Durbin. But the very terms of the civic rights 
argument, then, the right to arms, would have been treated 
differently than rights like the right to vote.
    And let's get down to the bottom line here. Heller did 
establish the individual right. When you finished with your 
dissent, here is what it came down to say. If you are guilty of 
a felony that is not violent, you can lose your right to vote, 
but you can't lose your right to buy a gun. Am I wrong?
    Judge Barrett. Senator, Kanter had nothing to do with the 
right to vote. The point that I was making in that passage, the 
Fourteenth Amendment actually expressly allows for States to 
deprive felons of their right to vote, and my point was that 
there was no similar language in the Second Amendment. I don't 
have an opinion, and have never expressed one, about the scope 
of a legislature's authority to take away felon voting rights. 
What I said is that there was a history of such provisions in 
State constitutions and in the Federal Constitution, but I did 
not intend--and if my words communicated that it was a 
miscommunication--I have never denigrated the right to vote.
    Senator Durbin. And I think it was, at best, a serious 
miscom-munication.
    I would like to read to you, in this very room, in 2005, an 
exchange that took place between Senator Kennedy and Judge 
Roberts. Senator Kennedy said, ``Let's start with the Voting 
Rights Act. Most Americans think the right to vote is among the 
most important tools that they have to participate in our 
democracy. You do agree, don't you, Judge Roberts, that the 
right to vote is a fundamental constitutional right?''
    Judge Roberts says, ``It is preservative. I think of all 
other rights, without access to the ballot box, people are not 
in the position to protect any other rights that are important 
to them. And, so I think it is one, as you said, of the most 
precious rights we have as Americans.''
    Do you understand why I read your lengthy dissent here, 
where somehow or another you could say to Rickey Kanter, 
``Sorry, you can't vote anymore, but buy any guns you wish,'' 
and we treat those rights differently? Can you see why that 
would be troubling, based on what Justice Roberts said?
    Judge Barrett. I don't, actually, Senator Durbin, because I 
have expressly testified here that I think voting is a 
fundamental right, and I didn't say to the contrary in that 
dissent.
    Senator Durbin. Well, I read it otherwise and I read it and 
reread it, so I won't get that right on your final but I will 
tell you, from the way I see your language, it is explicit. You 
have two categories of rights, one that is individual and 
another that is based on collective action, as in juries, as in 
voting as a group, as the populace. And you have made a 
distinction there that I think is hard to understand, difficult 
to explain, and inconsistent with what Justice Roberts told us 
at this point.
    I would like to move on to another--leave it open. I want 
you to have the last word on this, please.
    Judge Barrett. No, I am happy to answer whatever questions 
you have.
    [Poster is displayed.]
    Senator Durbin. Well, let me go to the poster behind me and 
introduce you to another family. This week I shared two stories 
of what is at stake with this, your nomination, ahead of the 
November 10th oral arguments in California v. Texas, which will 
decide the future of the Affordable Care Act.
    This is a family, and included in it is Jared Ray of 
Buffalo Grove, Illinois. He is on the right. Earlier this year, 
Jared, 20 years old, began experiencing serious headaches. 
After a month of suffering, he asked his father, Mike, to take 
him to the emergency room. A CT scan revealed a mass on Jared's 
brain--immediately transported to Evanston Hospital for 
surgery. Weeks later he learned the devastating news. Jared was 
diagnosed with medulloblastoma, the cancerous brain tumor on 
the cerebellum. I am sorry to say it is one we are familiar 
with here in the Senate. Senator McCain suffered from a similar 
situation.
    Post-surgery, Jared began an aggressive 6-week proton 
radiation protocol, currently on the first round of eight 
chemotherapy treatments at Lurie Children's in Chicago. His 
treatment costs have now added up to $700,000 and continue.
    Fortunately, the ACA permits Jared to remain covered by his 
mom's health insurance, until the age of 26. That law also 
ensures no lifetime limits on her policy, so that they can 
continue to give Jared the treatment that he wanted and needs.
    When sharing her son's story, his mom, Mary, said, ``Any 
parent would be shocked and terrified in this situation. If the 
ACA is abolished and if my employer elects not to offer 
coverage for dependents up until age 26, that puts Jared at 
risk of being uninsured and uninsurable because he will clearly 
have a pre-existing condition.''
    Jared's father added, ``Jared would not have access to this 
type of care if it were not for the Affordable Care Act, 
because he wouldn't be insured. It has been a huge benefit.''
    Judge, last week in your prepared testimony you said, 
quote, ``The policy decisions and value judgments of government 
must be made by political branches, elected by and accountable 
to the people. The public should not expect courts to do so, 
and the courts should not try.''
    Well thankfully, Judge, the political branches elected by 
the people passed and enacted the Affordable Care Act. The 
problem is now that the Republicans are doing everything they 
can to take away this protection, and they can't do it through 
elected officials. They tried, over and over and over, in the 
House and in the Senate. And I mentioned Senator McCain earlier 
in this statement. I will never forget it and neither will any 
of us who were on the floor that night, when he walked through 
those doors at 1:30 a.m., voting ``no'' and saving health 
insurance for 23 million Americans and protections for 100 
million or more.
    They couldn't repeal the Affordable Care Act in Congress. 
Now they have taken it to the Supreme Court. It isn't a casual 
decision. This administration decided that instead of defending 
an existing law they would attack an existing law, along with 
the Republican attorneys general, who have gathered for this 
purpose.
    They have good reason to believe that you are going to be 
successful. As I mentioned yesterday, right-wing judicial 
activists have repeatedly stepped in to overturn decisions of 
the elected branches of government, activist judging, including 
rolling back campaign finance laws in Citizens United, and 
voting rights protections away in Shelby County.
    The tool of choice of these activists is a supposedly 
neutral judicial philosophy of originalism and textualism, 
which gives judges the ability to substitute their own judgment 
for the elected branches' and to strike down and restrict laws 
that are disfavored by powerful special interests. President 
Trump has been open in acknowledging that he wants a nominee on 
the Court to strike down the ACA. You have said you have not 
made any agreements or statements to the contrary but I will 
tell you, it is a cloud over your nomination, because he has, 
over and over again, he has nominated other such advocates of 
originalism and textualism to carry out his political purposes. 
I am afraid of the impact of that repeal on people like Jared.
    So, we have been told that you are following the Ginsburg 
rule--no hints, to previews, no forecasts. In fact, during her 
confirmation hearing, Justice Ginsburg did answer substantive 
legal questions about matters that might come before the court, 
such as the right to choose.
    Yesterday you had one notable and selected departure from 
your interpretation of the Ginsburg rule. When it comes to 
California v. Texas, the Republican challenge to the Affordable 
Care Act, you repeatedly claimed that the deciding question in 
the case is severability, not the individual mandate. That is a 
legal opinion. But the Court will only reach the severability 
question if it first finds that eliminating the penalty for the 
individual mandate rendered the individual mandate 
unconstitutional. Isn't that right?
    Judge Barrett. Senator, what I meant by that is that even 
if the mandate is unconstitutional, severability would--if it 
is severable, then the statute would stand. And so, if the 
mandate is constitutional then, yes, the law would stand. But I 
said that the emphasis--and I have gotten a lot of questions 
about severability for this reason, and much of the commentary 
in the legal news about this is focused on severability, 
because it means that whatever the holding is on the mandate, 
the severability question is the one that would be 
determinative, even if a mandate were held unconstitutional.
    So, it is a descriptive. I didn't say how I would rule on 
severability and I didn't say how, whether I would interpret 
the zeroed-out provision to be a penalty rather than a tax.
    Senator Durbin. But, you see, that second part, penalty, 
tax, you have already addressed that, haven't you?
    Judge Barrett. No, I haven't. The writing that I have done 
before, that I assume you are referring to, addressed a 
different provision that wasn't zeroed-out. This is now an 
amended provision so it is a different provision before the 
Court.
    Senator Durbin. But you are on record for criticizing Chief 
Justice Roberts' opinion that the individual mandate is 
constitutional, haven't you?
    Judge Barrett. I am on record saying that I thought that 
the majority opinion was a less plausible interpretation of the 
statute than that of the dissent. Again, that was an academic 
writing, number one. Number two, it was on different issues 
than those that are presented in California v. Texas. And 
number three, I think you are suggesting that I have some 
hostility to the ACA, which I assure you that I don't.
    And I think, Senator Durbin, there is actually something 
you and I agree on here. Judicial activism is bad, from either 
side, and no matter what somebody's policy preferences are 
about the ACA, I completely agree with you they shouldn't be 
trying to undermine the policy that Congress enacted. So you 
and I agree on that, and I embrace that view of a judge's role 
wholeheartedly.
    Senator Durbin. Thanks, Judge Barrett.
    Chairman Graham. We will do Senator Lee, Whitehouse, and 
Cruz, then break for lunch.
    Senator Lee. Thank you, Mr. Chairman.
    Mr. Chairman, I would like to submit to the record a letter 
from the American Legislative Exchange Council.
    Chairman Graham. Without objection.
    [The information appears as a submission for the record.]
    Senator Lee. Judge Barrett, I want to talk about religious 
freedom for a moment. As I mentioned the other day, I think you 
and I share something in common on this and enthusiasm for 
religious freedom.
    As I mentioned the other day, I am a member of the Church 
of Jesus Christ of Latter Day Saints. We have been no strangers 
to religious persecution, even in this country, unfortunately.
    On October 27th, 1838, the governor of Missouri ordered us 
exterminated. It was not nice but, you know, I assume he had 
his reasons. He believed we were heretics and I am sure we are 
heretics in the eyes of many.
    But we try to be really nice heretics, and it wasn't until 
the late 1970s that the governor of Missouri actually lifted 
that ban. I am sure Josh Hawley, as attorney general, would 
have lifted it for us had it not been lifted by then.
    Religious liberty has always been interesting to me for 
that reason and also just as a lawyer. My late father, who was 
also a lawyer, worked on and advised Congress regarding the 
Religious Freedom Restoration Act, and my longtime professional 
mentor and former boss, Gene Schaerr, was someone who I worked 
with in establishing a first of its kind religious institutions 
practice group a couple of decades ago.
    Catholics, like members of my faith, have also been 
subjected to religious persecution from time to time, and in 
many cases were directly targeted through so-called Blaine 
amendments, provisions worked into a number of State 
constitutions really for, in many cases, blatantly anti-
Catholic purposes.
    These Blaine amendments had, of course, as their purpose 
the restricting of public funds going to certain religious 
institutions, including schools. Thankfully, earlier this year, 
the Supreme Court, in Espinoza v. Montana Department of 
Revenue, struck down--struck another blow against Blaine 
Amendments by reinforcing their earlier decision in the Trinity 
Lutheran case.
    Would you discuss briefly with us the Supreme Court's 
recent jurisprudence on this issue regarding Blaine amendments 
and how they--how they intersect with religious freedom?
    Judge Barrett. Sure. So, the Supreme Court's recent 
decisions get at the principle that while, you know, the--we 
have to be careful about the Establishment Clause, right.
    So, there is a line of cases saying, you know, a State or 
Federal Government, clearly, cannot establish a church and so 
we have a line of cases about what that means.
    But at the same time, Espinoza being an example, the Court 
has been free--very clear that religious institutions cannot be 
discriminated against or excluded from public programs simply 
because they are religious.
    Senator Lee. Now, during your time on the Seventh Circuit, 
you have been able to handle some cases involving religious 
freedom issues. For example, you joined a majority opinion in 
the Grussgott case upholding the freedom of a Jewish religious 
school and its authority--its own discretion to hire teachers 
at its school.
    Now, that ruling was challenged before the U.S. Supreme 
Court, but the Supreme Court denied certiorari in that case. 
But nonetheless, a 7-to-2 majority of the Supreme Court in the 
Our Lady of Guadalupe case ended up essentially adopting a 
position similar to that which you joined in the case I just 
mentioned, in the Our Lady of Guadalupe case.
    Can you talk to us just a little bit about that opinion and 
about the Seventh Circuit opinion and its application of the 
ministerial exemption?
    Judge Barrett. Sure. So the ministerial exemption--as you 
say, you know, the Court had described it in Hosanna-Tabor--the 
ministerial exception gives religious institutions discretion 
to hire, in the case of the school, teachers. It is called who 
are ministers, and what this gets at or what this requires 
courts to do is to decide who is a minister. And on the one 
hand, there may be some which you could, plainly--you know, 
which might be more obvious questions like, you know, someone 
who teaches religion, religion teachers.
    So, what the Court has said is, you know, those would 
follow more in the heartland. It gets a little bit more 
difficult if you have a religious school, like the Jewish 
school in Grussgott or the Catholic school in Our Lady of 
Guadalupe, who has a teacher that is like, say, for example, 
teaching math, and then the courts have to come up with a test 
to decide whether such a person is a minister or not.
    And what Grussgott and Our Lady of Guadalupe said is, it is 
a multifactor test where no one factor is determinative. So it 
cannot be determinative just that the teacher teaches math 
rather than religion.
    For example, in Grussgott, the teacher spent time teaching 
Jewish prayers and saying Jewish prayers with the class, and 
the school considered it part of the teacher's duty to form the 
students--to teach them about Jewish prayers and to form them 
in that tradition. So even though she spent other time on the 
curriculum teaching other matters, it viewed that as part of 
her job and the school viewed her as a minister.
    And so, Our Lady of Guadalupe gives a lot of deference to 
the school's characterization of whether someone is a minister 
or not, not to encourage discrimination, of course, but simply 
to protect religious freedom, you know, so at a Catholic school 
the teacher may teach math, but also prays with the students in 
the morning, attends Mass with them during the week, and is 
considered by the school, you know, say, in Our Lady of 
Guadalupe, to be someone who is also forming children in the 
faith.
    So, it is really about what the scope of that ministerial 
exception is and how you identify whether someone is a 
minister.
    Senator Lee. Thank you. Thank you. That is helpful.
    When you came in front of this Committee in 2017--we are 
talking about just over 3 years ago--for your confirmation to 
the U.S. Court of Appeals for the Seventh Circuit, you said, 
quote, ``If there is ever a conflict between a judge's personal 
conviction and that judge's duty under the rule of law, it is 
never permissible for that judge to follow their personal 
convictions in the decision of the case rather than what the 
law requires.''
    Do you still stand by the statement?
    Judge Barrett. I do.
    Senator Lee. I have got some colleagues on the other side 
of the aisle who seem to want to focus on statements made in 
your personal capacity and in your capacity as a private 
citizen and a member of your faith as opposed to addressing 
actual cases dealing with abortion.
    I have a hunch that this is because your record on the 
Seventh Circuit actually shows that you are able to set aside 
your personal convictions, because that is what you have done 
when they have conflicted with your duty under the rule of law.
    In Price v. Chicago, for example, I assume you remember 
that case. It is a case in which you joined a Seventh Circuit 
panel opinion affirming the legality of a Chicago buffer zone 
law, which places limits on pro-life activists as they are 
demonstrating, exercising their First Amendment rights outside 
of abortion clinics.
    I assume that was the case because there was binding 
Supreme Court precedent on the abortion buffer zone issue. Is 
that--is that right? Or do you want to tell me a little bit 
about your reasoning in that case?
    Judge Barrett. So the panel held that the issue is squarely 
controlled by the Supreme Court's decision in Hill v. Colorado.
    Senator Lee. So, there was binding precedent on point and 
so you followed that precedent and you did so as a jurist 
rather than following whatever personal predilection might have 
otherwise guided you or any other member of that panel.
    In Planned Parenthood of Indiana and Kentucky v. 
Commissioner of the Indiana State Department of Health, you 
joined a dissent written by Judge Frank Easterbrook of the 
Seventh Circuit, and the Supreme Court later agreed with you in 
a 7-to-2 decision with respect to the Indiana law requiring 
fetal remains to be buried or cremated following an abortion, a 
position that garners a 7-vote majority on the Supreme Court 
these days, at least a 7-to-2 decision that includes Justice 
Breyer and Justice Kagan, does not seem very radical to me. Do 
you disagree? Am I missing something about that?
    Judge Barrett. The Supreme Court summarily reversed--which 
means without argument and briefing--the panel's holding in 
that case, that the fetal remains, you know, the disposition of 
fetal remains portion of that statute was not rational.
    Senator Lee. I will note for the record here that I do not 
think I have ever heard anyone characterize as a radical act of 
conservative activism a 7-to-2 decision joined by Justice Kagan 
and Justice Breyer.
    Judge Barrett, in addition to being able to set aside your 
personal convictions when deciding a case, you have also 
demonstrated the ability to expertly determine what the law 
requires.
    This stems, I believe, from fundamental and, I believe, 
correct view that a jurist, a judge, needs to start from the 
premise that the law provides an answer. The fact that legal 
disputes can be difficult and reasonable minds might disagree 
as to them doesn't excuse the judge in believing that there is 
a right answer. And you seem to follow with that and your--it 
shows up in your work in a way that reflects very well on you.
    The Congressional Research Service conducted a review of 
your cases from the U.S. Court of Appeals for the Seventh 
Circuit and determined that your decisions, and this is a 
quote--quote, ``evinced case by case consideration of the 
relevant law and facts without any clear overarching trend 
toward either expanding or narrowing Fourth Amendment 
protections,'' closed quote.
    Now, this is exactly what I would expect from a textualist 
originalist on an issue that, like the Fourth Amendment, can 
actually be politically charged. But with a textualist 
originalist, this is exactly what you would expect to see, 
somebody who doesn't appear to be a partisan one way or another 
and comes down on both sides, on the government side and on the 
nongovernment side. This would also account for a variety of 
outcomes in your cases because you are not aiming for an 
overarching trend in outcomes. Your analysis seems sometimes to 
come out in favor of a defendant and sometimes in favor of the 
government.
    I find your dissents and your concurring opinions in panel 
decisions to demonstrate this commitment to following the law 
as it is written rather than on the basis of some external 
objective.
    Can you tell us why you felt the need to dissent in the 
case of Schmidt v. Foster?
    Judge Barrett. Yes. So, Schmidt v. Foster involved a State 
court case. It came up through the Wisconsin courts, and in the 
case there was a question of whether the defendant could raise 
a defense under Wisconsin law called, ``adequate provocation,'' 
for having murdered his wife.
    The case wound its way through the Wisconsin courts, and 
the defendant argued that an ex parte examination of the judge 
at which his counsel was present but not permitted to speak did 
not violate the Sixth Amendment because, in that case, the 
defendant--they did not want to preview his case for the 
prosecutor, and so he did not want the prosecutor in the room.
    So, the judge said, well, I will allow that but only if 
your attorney doesn't speak because, you know, if we are not 
going to preview your case for the prosecution and not permit 
the prosecutor to be here, you know, that was how he was going 
to do it. So, then the judge proceeded to ask the defendant 
questions to decide whether he could make an adequate 
provocation defense and concluded that he could not.
    In that case, the Wisconsin courts held that this 
proceeding did not violate the defendant's right to counsel, 
this--you know, telling his counsel that he couldn't speak. It 
came to my court under 2254, which is the State habeas statute 
permitting collateral review of State convictions.
    But AEDPA requires very heavy deference to State courts. 
You know, you can only disturb a State court holding, for 
example, in a matter of law, determination on a matter of law, 
if no reasonable jurist could reach that conclusion, you know, 
or it has to be in conflict with clearly established Supreme 
Court law.
    And in that case, I made clear that it was not up to us to 
decide whether we thought as an original matter, just that the 
case had just come up before us, whether that violated the 
Sixth Amendment because as the panel majority, which then 
became a dissent when the case went en banc said this was an 
unprecedented kind of hearing, which, if it was unprecedented 
meant that there was no clearly established Supreme Court law 
on point.
    So, the decision in that case was driven by federalism and 
by the statutory instruction that Federal courts give deference 
to State courts.
    Senator Lee. Thank you. In another case, United States v. 
Wilson, I believe that was a case in which you agreed with the 
majority in concluding that the officers acted with reasonable 
suspicion, based on the circumstances of the case and the 
detention there involving flight by the individual from the 
scene.
    But you wrote separately. Tell us why you wrote separately 
in that case.
    Judge Barrett. So that case, if I have the case correctly--
I have been almost 600 cases, but I think I know the case that 
you are talking about--I think that was a case where police had 
a tip about some criminal activity and there were a group of 
men in a park. The police approached the park, and then they 
went up to talk to one of the men at the park because they 
noticed a bulge in his pocket. He was wearing gym shorts or 
some sort of athletic shorts that showed a bulge.
    And the police approached them, approached the man, and he 
fled, and under Supreme Court caselaw, the determinative 
question for a seizure is, you know, whether the person fled 
and then was detained, then seized by the police. The other way 
that that could have been justified is if, as a matter of a 
Terry stop as the case, the police had reasonable suspicion to 
approach him just because they saw the bulge in his pocket.
    And I wrote separately because I thought that the 
policeman's basis for stopping him, if this really had just 
been a Terry stop, based on reasonable suspicion, was 
questionable because they really had--I mean, they had an 
anonymous tip. The people in the park did not match the 
description of the--the description given in the anonymous tip. 
All they saw was a bulge in the pocket. So, if he had not fled, 
I mean, I thought the case should have just talked about the 
flight because if he had not fled, I was pretty dubious that 
that would have been a justified stop.
    Senator Lee. I admire your decision to write separately in 
that case. I think that shows real courage and moral and 
judicial leadership to speak out and write separately when the 
occasion requires it, and you did so here with nothing to gain 
from it. You did so because it was important to point that out 
under the law, and I respect that a lot.
    In the couple minutes we have got left, I wanted to ask you 
more broadly about something I have noticed in reviewing 
letters and other materials we have received in response to 
your nomination. I have noticed that there is a common theme 
among your law clerks and your students. They feel like you see 
them as individuals and they feel mentored and taught by you. 
Tell us a little bit about that. I would love to hear, for 
example, how you go about deciding who to hire as your law 
clerks and how you mentor them as they go through their year 
studying with you.
    Judge Barrett. So over the teaching--over my teaching 
career, I have taught, roughly, 2,000 students and now I have, 
as a judge, four law clerks per year, and then I also continue 
to teach at least a seminar in which I have, like, 15 or so 
students usually. And, you know, what I am looking for in a law 
clerk, of course, is, you know, excellent legal ability because 
I need the help, you know, to do the legal research and all of 
that sort of thing.
    So, I want someone who has excellent legal ability. I want 
someone who has integrity. I want someone who isn't afraid to 
push back and express his or her own opinions but at the same 
time realizes that, you know, I am the boss and if I disagree, 
you know, then they are going to have to go along, ultimately.
    But I also want clerks who are, you know--and this is part 
of the integrity--who have character. Our chambers is small. If 
someone had, say, sharp elbows, you know, in a chambers that 
only has six people--you know, my assistant, the four law 
clerks and me--or that showed disrespect or arrogance, that 
would make for a pretty miserable year for everyone.
    And I have not been disappointed. Every one of my law 
clerks has fit that bill, and so I view it as my duty with my 
law clerks, much like with my students, to encourage them to 
enter the profession as full people who, hopefully, have gained 
some knowledge of the law in their time with me and also seen 
how they can, you know, live a life where people can disagree 
without being disagreeable.
    Senator Lee. Thank you, Judge Barrett. I see my time has 
expired. Thank you, Mr. Chairman.
    Chairman Graham. Thanks. Senator Whitehouse.
    Senator Whitehouse. Thank you, Chairman. Judge Barrett.
    Judge Barrett. Senator.
    Senator Whitehouse. First, if I may, Chairman, let me ask 
unanimous consent that an essay I wrote for the Harvard Journal 
on Legislation called ``Dark Money and U.S. Courts'' be 
admitted to the record.
    Chairman Graham. Without objection.
    [The information appears as a submission for the record.]
    Senator Whitehouse. I have got a report that Senate 
Democrats prepared called, ``Captured Courts'' be admitted to 
the record, and that an article by Christopher Leonard in The 
New York Times called, ``Charles Koch's Big Bet on Barrett,'' 
describing his activating his political network to support 
Judge Barrett's nomination, also be entered into the record.
    Chairman Graham. Without objection.
    [The information appears as submissions for the record.]
    Senator Whitehouse. Thank you. Judge Barrett, on the 
Seventh Circuit you are subject to a code of ethics, are you 
not?
    Judge Barrett. I am.
    Senator Whitehouse. And I presume you are okay with that?
    Judge Barrett. Of course.
    Senator Whitehouse. In fact, I would submit, you probably 
think that is a good thing?
    Judge Barrett. Yes.
    Senator Whitehouse. And, indeed, it is true of all the 
circuit courts that they are subject to pretty much the same 
code of ethics. Correct?
    Judge Barrett. Yes.
    Senator Whitehouse. It gets different at the Supreme Court. 
The Supreme Court is not subject to a code of ethics, is it?
    Judge Barrett. The Canons of Judicial Conduct that apply to 
lower court judges do not apply to the Supreme Court, although 
I do believe it is the practice of the Supreme Court to follow 
them.
    Senator Whitehouse. Yes. They do--they do not apply, we 
agree. And, indeed, going to the Supreme Court can interrupt an 
ethics investigation, as we saw with Justice Kavanaugh, who had 
an ongoing ethics investigation in his circuit that was 
interrupted by his elevation to the Supreme Court without 
having concluded.
    Let me first ask you, there is no such thing with you. 
Correct? We have no Seventh Circuit ethics investigation going 
on that would be interrupted by your elevation to the Supreme 
Court?
    Judge Barrett. I am not aware of any ethics investigation.
    Senator Whitehouse. I suspect you would be. So good, we can 
put that behind us.
    With respect to reporting of gifts, of travel, of 
hospitality, of what the Constitution might call emoluments, 
all of the circuits have a pretty solid rule about reporting 
those and you comply with that rule on the Seventh Circuit, do 
you not?
    Judge Barrett. I do. It might even be by statute that we 
have to do that. But I do.
    Senator Whitehouse. Yes. And the rule--I do not know how 
familiar you are with this so I will offer this as a 
proposition--the rule that you follow and the way in which 
circuit judges follow it aligns quite well with the reporting 
requirements that in the executive branch members of the 
Cabinet have to do when they get gifts, travel, hospitality, 
and other emoluments, and it aligns quite well with the 
reporting that Members of Congress have to do when they get--
when we get gifts of travel or hospitality or other such 
emoluments.
    The discrepancy here is with the Supreme Court, which has a 
much lower standard of transparency and disclosure about those 
very same things.
    So, it is a bit of a mystery when I see the situation that 
when you go up to the Court, you will be not subject to the 
code of ethics that you are subject to now or any other, and 
you will have lower reporting requirements than you do now or 
that any of us do.
    And I flag that for you because I think it is anomalous 
that the highest court should have the lowest standards, and I 
do not know if you want to say something about that.
    At a minimum, I hope you will keep an open mind about 
trying to fix that when you are on the Court. If you have a 
defense of why the highest court should have the lowest 
standard, have at it now.
    Judge Barrett. I did not know--I know that the Justices 
file financial disclosure reports. I have never looked at one. 
I did not know that they were different or that it was a lower 
standard from the ones that the rest of us file.
    Senator Whitehouse. Okay. Well, take a look at that when 
you get up there. This is a matter, I think, that the Court 
handles administratively----
    Chairman Graham. I have never interrupted anybody, but can 
I just ask one question?
    Senator Whitehouse. Of course.
    Chairman Graham. Now that you know that, how do you feel 
about it?
    Judge Barrett. That the Supreme Court----
    Senator Whitehouse. Let's stop my time while you are 
answering the Chairman's question.
    Chairman Graham [continuing]. Stop the time, but I think 
this is a good question.
    [Laughter.]
    Chairman Graham. Now that you know, how do you feel about 
it?
    Judge Barrett. I guess, as I just said to Senator 
Whitehouse, I am surprised because I did think it was by a 
statute that applied to everyone. So I am surprised. I have 
always complied with filling out my financial disclosure 
reports, and as I am sure it may have been for you all, you 
know, it is a little uncomfortable the first time to make your 
finances available. Anybody can request it. But I have always 
complied.
    Senator Whitehouse. For the record, it is a question of 
interpretation and practice, and Senator Graham and I have 
actually had public conversations about trying to remedy this 
with a legislative fix. So, you have got that, potentially, 
coming your way. So, I flagged that for you.
    The second thing--another topic I would like to raise with 
you is you have repeatedly mentioned during this hearing the 
phrase about litigation winding its way up through the courts 
and, ultimately, to the Supreme Court, and you have described 
that process of winding its way as an important restraint on 
judicial activism, that you got to wait until a court gets--a 
case gets to you in the ordinary course. Correct?
    Judge Barrett. Correct.
    Senator Whitehouse. That is a fair description of where you 
have been?
    Judge Barrett. Correct.
    Senator Whitehouse. Yes. And the--ordinarily--I do not know 
if you have ever done a case, but ordinarily when you do a case 
it begins with a person. Right?
    Judge Barrett. Correct.
    Senator Whitehouse. And that person feels an injury?
    Judge Barrett. Yes.
    Senator Whitehouse. And then that person goes to a lawyer?
    Judge Barrett. Yes.
    Senator Whitehouse. And then that lawyer goes on their 
behalf to court?
    Judge Barrett. And files a complaint.
    Senator Whitehouse. And files a complaint. And then in 
court they try to win and vindicate their injury. That is kind 
of the basic, standard way in which this works.
    Judge Barrett. Yes.
    Senator Whitehouse. So it gets a little weird sometimes and 
that is a circumstance I would like to bring up to you because 
it touches on some of the stuff that I addressed yesterday.
    One case--it is not even a case. You know Janus?
    Judge Barrett. Yes.
    Senator Whitehouse. Okay. Let us describe this as the Janus 
saga because it is more than, really, one case and it is really 
about a completely different case called Abood.
    [Poster is displayed.]
    Senator Whitehouse. You are familiar with the Abood 
decision?
    Judge Barrett. Yes.
    Senator Whitehouse. So the Abood decision was precedent 
for, what, 40 years?
    Judge Barrett. I cannot remember when Abood was decided. 
But it was precedent before Janus.
    Senator Whitehouse. Yes, and, roughly, 40 years, I will 
tell you. And had repeatedly been reaffirmed?
    Judge Barrett. It was a long-standing precedent.
    Senator Whitehouse. Yes, on which there was considerable 
reliance?
    Judge Barrett. Let's see. So Janus did overrule that 
precedent and so Janus did go through the application of the 
stare decisis factors in deciding whether to overrule it----
    Senator Whitehouse. Right.
    Judge Barrett [continuing]. Whether that conclusion was 
right or not.
    Senator Whitehouse. And there--there was, in fact, reliance 
in the 40 years that it had been the law of the land on the 
question of--the union question that it had resolved?
    Judge Barrett. Well, I do not want to second guess or 
criticize or praise the majority in Janus's calculation.
    Senator Whitehouse. I am not asking you to. I am asking 
you, as a matter of fact, had 20-plus States relied on it?
    Judge Barrett. Well, Senator, I think reliance and the 
degree of reliance on Abood is a legal question.
    Senator Whitehouse. Okay. We will just leave that then.
    So, the Janus saga begins actually with a case called Knox, 
in which Justice Alito took a shot at Abood. He criticized it 
as substantially impinging upon First Amendment rights of union 
members.
    Just for people who are watching, the Abood case was about 
the right of a labor union to get compensated--not dues, but 
just compensation from nonmembers when, in their representation 
of their members they get added benefits for the people who are 
not members. So, not the most exciting part of the law but 
settled this question of when labor unions could get 
compensated for work they do for nonmembers.
    But, Justice Alito did not like it. He took a shot at it in 
Knox v. SEIU, and the concurrence in that case said, whoa, wait 
a minute, quote, ``The majority's choice to reach an issue not 
presented by the parties briefed or argued disregards our 
rules.'' But Justice Alito did not like something about Abood 
and so he took that shot.
    Then we went on to a later decision called Harris v. Quinn. 
Alito took another shot at Abood in that case, describing Abood 
as having analysis that is questionable. He undertook an 
extended critique of the decision, describing it as having 
questionable foundations.
    Justice Kagan spotted that and in her dissent she said, 
``Today's majority cannot resist taking potshots at Abood,'' 
and described its critique of Abood's foundations as, 
``gratuitous dicta.''
    But the message went out from Judge Alito that he wanted to 
do something about Abood. There was something about Abood that 
he did not like, and with that, we went to--that is the 
prequel. Then we went to the two cases that followed.
    The first one was Friedrichs, which was supposed to be the 
case that got rid of Abood, and it had an interesting travel 
because the lawyer in the case was one of these groups from 
Janus.
    [Poster is displayed.]
    Senator Whitehouse. It was the Center for Individual 
Rights, right here, who was counsel. In Janus, the National 
Right to Work Legal Defense Foundation was counsel. So, they 
switched. Right?
    In Friedrichs, Center for Individual Rights was counsel. 
National Right to Work was an amicus. When it went on to Janus, 
they switched. National Right to Work Legal Foundation--Defense 
Foundation was counsel and Center for Individual Rights was an 
amicus.
    And from everything that I see, it looks like they actually 
went out and found the plaintiff. So back to our earlier 
discussion, it was not the injured person that went and hired a 
lawyer. It was the legal group that went and found a plaintiff.
    And then they went to court, which everybody does. But it 
got interesting there because there the lawyers asked to lose. 
I do not know if you have ever been on a case in which the 
lawyers asked to lose before. I never have been. I have never 
litigated against anybody who asked to lose.
    Have you ever been on a case in which a party asked to 
lose?
    Judge Barrett. No, I do not think I have ever experienced 
that.
    Senator Whitehouse. Yes. I can--I can imagine not.
    [Laughter.]
    Senator Whitehouse. So, these groups----
    [Poster is displayed.]
    Senator Whitehouse [continuing]. With all this money behind 
them from Donors Trust and Bradley Foundation and all, come 
into court and they say, please dismiss my case in the district 
court.
    Then they go up to the Ninth Circuit, and they specifically 
ask the Ninth Circuit to get rid of their case, to dismiss--
uphold the decision dismissing their case, quote, ``as quickly 
as practicable and without argument.''
    Have you ever seen a case in your circuit where somebody 
came in and said, I would like to lose and I would like to lose 
as quickly as practicable, and I would like to lose without 
making an argument on behalf of my client?
    Judge Barrett. But Abood was controlling law at that point. 
Right?
    Senator Whitehouse. My question was, have you ever seen 
that happen in your circuit?
    Judge Barrett. I have not seen that happen in my circuit.
    Senator Whitehouse. Yes. Okay.
    So then the case went on to decision, and as predicted or 
signaled by Justice Alito, it looked like it was going to be a 
5-to-4 decision, knocking out Abood after 40 years.
    Sadly and unfortunately, Justice Scalia died before that 
decision could be rendered so it actually turned out to be a 4-
4 decision and, as you know, a 4-4 decision, the tie goes to 
the decision below, and the Ninth Circuit prevailed. And so 
that was it for Friedrichs.
    But it did not take long for this same group----
    [Poster is displayed.]
    Senator Whitehouse [continuing]. So, this is back to my 
Janus exhibit--these are all the commonly funded amici and 
lawyers who showed up in Janus. Eleven of them had showed up in 
Friedrichs.
    So, Janus was a reunion of the team, everybody piling back 
in together to get what they--and there was no big rush this 
time because this time they had to wait for the vacancy on the 
Court to be filled.
    They did not want a 4-4 decision. They had to wait for 
Justice Gorsuch. So there was not the same rush. The case came 
through more ordinary travel and then, boom, in they went to 
argue it and down came the decision.
    And I ask you to think that through because I have done 
some appellate argument and I have done some trial work and I 
have run an awful lot of litigation, and one of the things that 
has been a constant for me has been the belief that even if I 
was kind of taking a long shot case, I would get a fair 
hearing, I would get a fair decision, and I had a shot.
    I have got a feeling that the lawyers going into the United 
States Supreme Court in that Janus case----
    [Poster is displayed.]
    Senator Whitehouse [continuing]. Looking at this array of 
commonly funded anti-union front groups assembled against them 
as amici, having seen what Friedrichs portended, having been 
signaled by Alito in those earlier cases that they wanted to 
get rid of Abood, that they were on the hunt for Abood, that is 
a feeling that no lawyer should have in America.
    And all I want to do is leave with you the thought that 
when you are on the Court, I hope you will conduct yourself and 
see in whatever way you can that the Court conducts itself in 
such a way that no lawyer goes into an argument in the United 
States Supreme Court feeling that the case is set against them 
and there is nothing to be done other than go in and take your 
medicine.
    Judge Barrett. Senator Whitehouse, I will approach every 
case with an open mind.
    Senator Whitehouse. So, I have a little bit of time left so 
I am going to get onto a third--by the way, I am not the only 
one who sees this as a saga. The dissent in Janus said, here 
ends the, quote, ``six-year campaign to undo Abood by the 
majority of Five.''
    Pretty safe to say that you do not think courts should be 
campaigning to reach decisions?
    Judge Barrett. Without commenting on Janus or what happened 
there----
    Senator Whitehouse. Correct. Correct.
    Judge Barrett [continuing]. Yes, I think that judges 
shouldn't have campaigns.
    Senator Whitehouse. Or projects.
    Judge Barrett. I think judges should not have pet projects 
and they should not have campaigns. They should decide cases.
    Senator Whitehouse. Thank you.
    So, let us talk about--because we have had all these, I 
think, odiferous amici fluttering around the Court without 
disclosing who is really behind them, let us talk about amici 
for a minute.
    First of all, on the Seventh Circuit do you have ex parte 
meetings with litigants?
    Judge Barrett. No.
    Senator Whitehouse. Because why?
    Judge Barrett. Well, that would be----
    Senator Whitehouse. Because it is wrong?
    Judge Barrett. Yes. Sure. I mean, there are constraints 
against doing so.
    Senator Whitehouse. Yes. And how about with amici? If you 
have a case in which there is an amicus in a case that is 
before you, would you meet privately with amici while their 
case, the case in which they have written a brief, is pending?
    Judge Barrett. You mean meet privately? Allow the amici to 
have access to the judges privately to try to make the case?
    Senator Whitehouse. Yes. Yes.
    Judge Barrett. I would not do that.
    Senator Whitehouse. No. And why would you not do that?
    Judge Barrett. That would be inappropriate.
    Senator Whitehouse. Yes. And, in fact, is it possible that 
you could not even know who was really behind the amicus if 
they haven't told you?
    Judge Barrett. You mean how the amicus was funded?
    Senator Whitehouse. Correct.
    Judge Barrett. To my knowledge, I am thinking through what 
the disclosures are in the friends of briefs. I mean, to my 
knowledge, that information is not part of what groups 
disclose----
    Senator Whitehouse. Correct.
    Judge Barrett [continuing]. When they file amicus briefs.
    Senator Whitehouse. Correct. There is actually a bit of a 
tradition that has developed that amici, in their disclosure, 
only describe who paid for the actual physical preparation and 
filing of the brief.
    So, if you had a big interest, let us say, that went--and 
gave a group a million dollars, maybe even stood up a pop-up 
group out of no place, and said, here is a million dollars, I 
want you to go out and do great things. Oh, and by the way, we 
would sure appreciate it if you filed an amicus brief in this 
matter, just do not mention us, and we would love to give you 
some advice about what you should say in the amicus brief, and 
it would be nice if you would let us read it before you file it 
so we can make sure we do not need to give you any more 
advice--that doesn't meet the standard of 37.6.
    The Court and the parties would never know, and, in fact, 
this happened in the Oracle case, in Oracle v. Google. It turns 
out that Oracle had given up to $99,000, according to their 
disclosure, to something called the Internet Accountability 
Project, which filed a brief and did not disclose that Oracle, 
a party in the case, had given it $99,000, and Internet 
Accountability Project was, basically, a pop-up. Somebody 
established it. It took the money. It wrote the brief.
    There is a group that has more cred that has been around 
longer, called the American Conservative Union, which was given 
up to $500,000 by Oracle and filed a brief in the Oracle case 
and did not disclose that it had been given that kind of money 
by Oracle.
    Isn't that the kind of stuff that parties ought to know, 
that the public ought to know, and that the Court ought to 
know?
    Judge Barrett. I did not know that until you just shared 
that information with me.
    Senator Whitehouse. Well, think about it, because I think 
it is something that the public and the parties and the Court 
ought to know.
    Because if what you have is amicus groups that are coming 
in, flying false flags, not revealing whose interests they are 
really there to support, and potentially teeing up arguments 
and ideas that will benefit the secret funders, that will maybe 
tee up for a case they know is coming but is not this case, but 
if they can tilt the law a little bit in it, it can have an 
effect later on, other parties should know that.
    So, I urge you to consider that, and I am 13 seconds out, 
so I will leave it with that. Please think about these things.
    There is something that is not right about the way this is 
happening, and I urge you and I urge anybody from the Court who 
is listening to try--to sincerely try to clean this mess up 
because it is not good for the Court. Thank you.
    Judge Barrett. Thank you, Senator Whitehouse.
    Chairman Graham. Senator Cruz.
    Senator Cruz. Thank you, Mr. Chairman.
    Let me say, first of all, the last 3 days of hearings have 
revealed very good news. They have revealed the news that Judge 
Barrett is going to be confirmed by this Committee and by the 
full Senate.
    With 2 full days of questioning, we have seen that our 
Democratic colleagues have very few questions, actually, to 
raise about Judge Barrett's qualifications. Very little of the 
time we have spent in here has concerned her record as a judge, 
her 20 years as a respected scholar.
    Instead, much of this hearing has focused on political 
attacks directed at President Trump. I recognize our Democratic 
colleagues are not going to be voting for President Trump in 
November. That is, certainly, their prerogative.
    But they have largely abandoned even trying to make the 
case that Judge Barrett is anything other than exceptionally 
well qualified to serve as a Justice.
    It is striking that as we sit here right now in this 
Committee room there are only two Democratic Senators in the 
room. If you look at the dais, there is chair after chair after 
chair that is empty. The Democratic Senators are no longer even 
attending.
    I assume they will show up for their time. But it is 
indicative of what they are tacitly admitting, which is that 
they do not have substantive criticism.
    Senator Durbin. Mr. Chairman, may I make a point of 
personal privilege?
    Senator Cruz. Of course.
    Chairman Graham. Yes, you may.
    Senator Durbin. We are in the midst of a COVID-19 crisis, a 
pandemic, and some Members are in their offices following this 
on television, and to suggest their absence here means they are 
not following or participating is incorrect.
    Senator Cruz. I would note the Senator from Illinois and 
his personal privilege somehow omitted the fact that all but 
two of the Democrats were physically here yesterday, and after 
the questioning they made the decision not to be here. That is 
fine. You are welcome to make that decision. But it is 
indicative when it comes to the time of the questioning that 
this side of the aisle does not have arguments against Judge 
Barrett that have any chance of prevailing.
    I do want to address a couple of the individual points that 
have been made. So, many of the Democratic Senators have talked 
about Obamacare at great length. At times I have been confused, 
and I thought we were on the Health Committee instead of the 
Judiciary Committee because it has been such a central talking 
point for every Democrat that, if President Trump is reelected, 
they assert everyone with pre-existing conditions is going to 
be denied healthcare and people will be dying in the streets.
    And I get that is their reelection message. It is not 
actually connected to reality. It is not actually true. Every 
member of the Senate agrees we are going to protect pre-
existing conditions, and I would note that not a one of the 
Democratic Senators who raised that point have addressed the 
very real and catastrophic failures under Obamacare.
    Obamacare has doubled the profits of the big health 
insurance companies. Doubled them. Obamacare has been great 
corporate welfare for giant health insurance companies at the 
same time, according to the Kaiser Foundations, premiums--
average families' premiums have risen more than--risen $7,967 
per year, on average.
    That is catastrophic that millions of Americans cannot 
afford healthcare. It is a catastrophic failure of Obamacare, 
and none of that has anything to do with Judge Barrett's 
nomination to the Supreme Court.
    That is a very good argument for Members of the Senate to 
be having. And yes, we should be protecting pre-existing 
conditions and expanding competition, expanding options, and 
lowering premiums. This body will continue to debate that. But 
Judge Barrett will not be the decision-maker on what the 
appropriate approach to healthcare is as a policy matter.
    A second point I want to address, Senator Durbin had an 
exchange with Judge Barrett about the right to vote and also 
about the Second Amendment.
    Now, as a policy matter, many Senate Democrats, number one, 
want to see the Second Amendment abridged to the maximum extent 
possible, and number two, many Senate Democrats have decided as 
a policy matter that they would like to see as many felons as 
possible able to vote, that it is, one would presume, they have 
made a determination it is in their political interests to have 
more felons--more convicted murderers, more convicted rapists, 
more people convicted of domestic abuse--voting, they have made 
an assessment that that helps their prospects on election day.
    They are entitled to make that policy determination and 
different States have made different determinations about in 
what circumstances felons should be allowed to vote, in what 
circumstances felons should not be allowed to vote.
    I, for one, am a bit puzzled. I am not sure our democracy 
is better by changing the law to allow murderers to vote. I am 
not sure the operation of the Republic would be better if 
Charles Manson had a greater voice in the electoral system, and 
I would note one of our colleagues, Senator Sanders from 
Vermont, in the course of the Democratic Presidential 
primaries, argued not just felons who were out of jail. He 
argued that felons in jail, literally, Charles Manson, serving 
a life sentence--I think multiple life sentences for murder--
should be able to vote. As a policy matter, I think that is 
pretty out there.
    But the interesting thing is, Judge Barrett was not called 
upon to make a determination whether, as a policy matter, every 
felon should vote or no felon should vote or somewhere in 
between. Rather, she was doing a very different thing, which is 
applying the law.
    And, Judge Barrett, did I hear you correctly that when you 
were describing your dissent in the Kanter case, that one of 
the reasons you said that there was a difference in the law as 
it concerned voting versus the Second Amendment is because the 
Fourteenth Amendment, the text of the Fourteenth Amendment 
explicitly contemplates legislatures making restrictions on 
voting based on whether you have committed a crime? Is that 
right?
    Judge Barrett. That is right.
    Senator Cruz. And I actually have the text of the Amendment 
because Senator Durbin was highly critical. As a policy matter, 
he wants those felons voting. But he did not, in fact, address 
the legal issue that as a judge, Judge Barrett was obliged to 
address, and Section 2 of the Fourteenth Amendment provides, in 
relevant part, ``But when the right to vote at any election . . 
. is denied . . . or is in any way abridged, except for 
participation in rebellion, or other crime.''
    Well, Senator Durbin may not like that the Fourteenth 
Amendment explicitly contemplates that if you commit a crime, 
if you are a felon, you may forfeit your right to vote, but 
that is in the text of the Constitution. And as a judge, Judge 
Barrett would be not doing her job were she not to look at the 
text of the Constitution and follow the text of the 
Constitution.
    Am I right, Judge Barrett, that the Second Amendment 
doesn't have similar language suggesting, ``or other crime,'' 
or anything comparable to that?
    Judge Barrett. You are correct.
    Senator Cruz. All right. A third point.
    There has been some discussion from Democratic Members 
raising the question of the Federalist Society and dark money, 
and all sorts of mysterious connections.
    Now, Judge Barrett, am I right that at least for a period 
of time you were a member of the Federalist Society? Is that 
right?
    Judge Barrett. While I was on the faculty as a full-time, 
tenured professor.
    Senator Cruz. And you have spoken at some Federalist 
Society events? Is that accurate as well?
    Judge Barrett. I have.
    Senator Cruz. In your time dealing with the Federalist 
Society, have they ever lobbied you to take a particular 
position?
    Judge Barrett. They have not.
    Senator Cruz. In your time as a judge, has the Federalist 
Society ever filed a brief in your court urging an outcome in a 
particular case?
    Judge Barrett. It is my understanding the Federalist 
Society doesn't litigate. They have not ever filed a brief in 
my court.
    Senator Cruz. Your understanding is correct. The Federalist 
Society does not file amicus briefs. Our Democratic colleagues 
have been engaged in a sustained effort to try to sully the 
Federalist Society.
    It is disconnected from reality. But I will say, and I wish 
Senator Whitehouse were here. My intention was to have this 
discussion with him here because he just spoke and spoke about 
all the connections. He had his charts. I would note--I was 
feeling a little bit bad that I did not have a chart with sort 
of red fuzzy yarn connecting all the things that are the deep 
conspiracies going on.
    [Document is displayed.]
    Senator Cruz. So, in that interest, I do have a chart that 
is a little bit smaller that has similar connections back and 
forth, and it is produced by, what is it, the Americans for 
Public Trust, and it shows the dark money connections between 
Senator Whitehouse and Planned Parenthood and Arabella Advisors 
and all of these different organizations with money flowing 
back and forth and back and forth, all the dark money.
    And, in fact, I would note one of those dark money 
organizations on the left that we talked about yesterday that 
is the Demand Justice organization.
    I would point out the Demand Justice organization has 
decided to be directly involved in these proceedings because 
this is a left-wing dark money organization that has posters 
that are right outside of this building, that have pictures--
Senator Lee, you are on the poster. Chairman Graham, you are on 
the poster. And the posters say, ``Supreme Superspreaders. 
Politics First, Health and Safety Last.''
    Well, you know what? The First Amendment is a great thing. 
If they want to put your pictures up it is actually--it is a 
pretty good picture of Senator Lee. It is not as good a picture 
of--Chairman Graham needs to work on getting a better picture 
to them.
    Chairman Graham. It is not their fault.
    [Laughter.]
    Senator Cruz. The Democratic dark money efforts dwarf the 
Republican dark money efforts, which is why without a twinge of 
hypocrisy Democratic Members make this charge repeatedly and, 
in fact, I will point to one specific example, which is a 
judge, Judge John J. ``Jack'' McConnell, who is a judge in the 
State of Rhode Island.
    Now, who is Judge McConnell? Well, he used to be the 
treasurer of the Rhode Island Democratic Party and a director 
of the Rhode Island branch of Planned Parenthood. Well, how did 
Mr. McConnell become a judge? Well, according to CQ Roll Call, 
he contributed about $500,000 to Democratic political 
committees before becoming a judge. This, by the way, is more 
than any other judge nominated by Obama or Trump. So, Judge 
McConnell stands at the top, $500,000. He donated $12,600 to 
Senator Whitehouse. He hosted a fundraiser for Senator 
Whitehouse at his home in Providence in 2006. Judge McConnell's 
wife gave another $250,000 to candidates and causes, so that is 
$750,000. And now, Judge McConnell is a judge after Senator 
Whitehouse vigorously led the fight to get him appointed a 
judge. He sits on the Committee on Codes of Conduct of the U.S. 
Judicial Conference, and what has he done on the Committee on 
Codes of Conduct? He has helped lead the charge to issue a new 
rule to try to ban judges from being members of the Federalist 
Society.
    [Document is displayed.]
    Senator Cruz. And to the shock of no one looking at the red 
yarn connections, after Judge McConnell and the Committee put 
out this assault on the Federalist Society to prohibit judges 
from sitting on--from being members, Senator Whitehouse and six 
other Democratic Senators loudly cheered that effort in 
writing.
    Now, fortunately, that effort was roundly denounced. Over 
200 Federal judges signed a letter opposing this. Federalist 
Society takes no positions, doesn't lobby, doesn't file amicus 
briefs, doesn't take public policy positions. Most of its 
events are debates where people on the left are featured 
prominently. Every single U.S. Supreme Court Justice, all of 
them, have spoken at at least one Federalist Society event. 
And, thankfully, the assault on the Federalist Society was 
withdrawn in the face of over 200 Federal judges and, I would 
note, 29 Senators, roundly criticizing the attempt.
    Let's turn to a fourth issue. Many Democratic Members of 
this Committee seem to be treating this hearing as a policy 
hearing on what is good healthcare policy, what is good gun 
policy, what is good voting rights policy.
    Judge Barrett, in your view, is it the responsibility of a 
Federal judge to implement policy positions that they might 
happen to agree with?
    Judge Barrett. That is your job, not a judge's.
    Senator Cruz. I very much agree with you.
    You know, it is easy for someone watching these proceedings 
to assume both sides want the same thing, just on opposite 
partisan lines. It is easy for someone watching to assume, 
well, the Democrats, they want Democrat judges to implement 
their policy, and the Republicans, they want Republican judges 
to implement their policy. As easy as that is to assume, I do 
not believe that is accurate. It is certainly not accurate with 
respect to the sorts of judges I would like to see nominated 
and confirmed, and I will give you an example of that.
    An issue that I am deeply passionate about is school 
choice. I think school choice is the civil rights issue of the 
next century. But I also think the right arena to fight for 
school choice is right here in the United States Senate. The 
right arena to fight for school choice is in the State 
legislatures. It is in the politically accountable elected 
legislatures.
    So, do I want to see a Federal court issue an order 
mandating school choice across the country? It might be simpler 
if I could just convince five Justices to order every 
jurisdiction in America, you must have school choice.
    It would be a lot easier than trying to convince 51 or 60 
Senators, trying to convince the House. We have gotten school 
choice legislation passed through this body that I have 
introduced. But it has been hard fought. It would be much 
easier if five philosopher kings could just mandate it.
    But that would not be an appropriate judicial role and I am 
certainly not asking Judge Barrett to issue any ruling. 
Although I believe that policy is the right policy, it is not a 
judge's role to mandate it.
    Interestingly enough, our Democratic colleagues do support 
judges prohibiting it. If you look at a case called Zelman v. 
Simmons-Harris, that was a case that was a challenge to Ohio's 
school choice program.
    Ohio's school choice program gave scholarships to thousands 
of low-income children, mostly African-American and Hispanic 
children, trapped in failing schools. It gave them hope. It 
gave them a chance at a decent education, a chance to escape 
violence, a chance to have a shot at the American dream.
    It was immediately challenged. The case went to the Supreme 
Court. By a vote of 5-to-4, the Supreme Court upheld the 
program. Four Justices were prepared to strike down that 
program as unconstitutional and with it every other school 
choice program in America, to rule that the Constitution does 
not let the elected legislatures decide to give scholarships to 
kids if they choose to go to a religious institution.
    As far as I am concerned, that is a radical and activist 
position. Four Justices were ready to shut down school choice 
programs all across the country. That is an example of how one 
side wants the Court to mandate their policy outcomes. The 
other side does not. I do not want school choice mandated. I 
want it to be left to the political process.
    For my last couple of minutes I want to address one other 
issue, which is the issue of packing the court. We have seen 
repeatedly Joe Biden and Kamala Harris refuse to answer whether 
they would pack the court.
    What does it mean to pack the court? Packing the court 
means one very specific thing, which is expanding the number of 
Justices to achieve a political outcome. Packing the court is 
wrong. It is an abuse of power. I believe, should they win in 
November, that our Democratic colleagues will pack the court. I 
think that is why Joe Biden refuses to answer it, although he 
did say, when asked, the voters do not deserve to know his 
answer as to whether he will pack the court.
    And what we have seen this past week is, we have seen, with 
a message discipline that is really quite remarkable, 
Democratic Senators all making a new argument that what 
Republicans have done for 4 years is packing the court.
    With all due respect, what utter nonsense. Filling judicial 
vacancies is not what that term means and they are endeavoring 
to redefine the language, to set the framework, to set the 
predicate for a partisan assault on the Court.
    I will read you some quotes.
    Joe Biden in 1983, quote: FDR's court-packing idea was, 
quote, ``a bonehead idea. It was a terrible, terrible mistake 
to make. And it put in question, if for an entire decade, the 
independence of the most-significant body . . . in this 
country.''
    Pat Leahy in 2017, quote: ``The Judiciary Committee once 
stood against a court-packing scheme that would have eroded 
judicial independence. That was a proud moment.''
    Senator Blumenthal, much the same.
    Senator Durbin in 2018, quote: ``Seventy-five years ago we 
went through this and I think the Congress was correct in 
stopping this popular President named Franklin Roosevelt from 
that idea.''
    Justice Ginsburg in 2019, quote: ``If anything would make 
the court look partisan it would be that--one side saying, 
`When we're in power, we're going to enlarge the number of 
judges' ''--not fill vacancies--`` `enlarge the number of 
judges so we would have more people who would vote the way we 
want them to.' Nine seems to be a good number. It has been that 
way for a long time. I think it was a bad idea when President 
Franklin Roosevelt tried to pack the court.''
    That is the next fight we are facing if Democrats win the 
Majority. I hope that we do not see that come to pass.
    Chairman Graham. Thank you, Senator Cruz. We will come back 
at 12:30. And we will lead off with Senator Coons--12:30 p.m.
    [Whereupon the Committee was recessed and reconvened.]
    Chairman Graham. The hearing will come back to order. 
Senator Klobuchar.
    Senator Klobuchar. Thank you very much, Mr. Chairman. 
Hello, Judge.
    Judge Barrett. Hi, Senator.
    Senator Klobuchar. Hello. I want to start out, again, by 
reminding friends at home, people at home, that this is not 
normal. We should not be here right now. We are in the middle 
of the pandemic, and people are sick. We are in the middle of 
the election, and people are voting. And yet here we are stuck 
in a nomination hearing.
    I know what my constituents care about, what they have been 
calling and writing me about, and that is, they are afraid of 
losing their healthcare in the middle of the pandemic. People's 
lives depend on the Affordable Care Act, like Steve, a senior 
from Tower, Minnesota, who has a heart condition and relies on 
his prescription medication; Emily from Minneapolis, mom was 
diagnosed with breast cancer; Janet from Rochester, whose 
brother has a mental illness; or Christie, a mom from 
Bloomington, whose daughter had a tumor. That is what is on the 
line. Healthcare is on the line, and, Judge, that is what is on 
the line in your nomination hearing, which unfortunately has 
been plopped in the middle of this election.
    This morning you had, I would call it, an academic 
discussion with Chairman Graham about the doctrine of 
severability, and that is about if you can uphold part of a 
statute but throw out another part of it, and you correctly 
said there was a presumption to save the statute, if possible.
    So, I want to be really clear with the American people that 
the Trump administration's own brief--this is the position of 
the Trump administration, filed by the Trump Justice 
Department--says that the entire Affordable Care Act must fall. 
That is the position of the Trump administration going into 
this case that is going before the Supreme Court in a few 
weeks.
    Judge, you clerked at the Supreme Court. Does the Justice 
Department's brief that they have filed represent the 
administration's and, therefore, the President's position 
before the Supreme Court?
    Judge Barrett. The Solicitor General is the Government's 
advocate before the Court.
    Senator Klobuchar. Right.
    Judge Barrett. Yes, that would represent the United States.
    Senator Klobuchar. Right. And if the brief did not 
represent the President's position, he would have the Solicitor 
General and the Justice Department withdraw the brief. Is that 
right?
    Judge Barrett. I believe so, yes.
    Senator Klobuchar. Okay. I just wanted to make that clear 
to the Chairman and to everyone out there, that while there is 
this doctrine to separate stuff and to try to uphold part of 
the statute, like, maybe pre-existing conditions, or doing 
something about keeping your kids on the insurance, the 
position of the Trump administration is to throw the whole 
thing out.
    The second thing I want to make clear is that you have been 
nominated to the highest court in the land, and you will be the 
deciding vote in many cases that will affect people's lives. 
And I appreciated that you have said, it is not the law of Amy, 
it is not your law, but the point is, is that you will be in a 
really important position. I think that is one of the reasons 
that they are trying to ram through this process right now. And 
while you are not saying how you are going to rule on cases, as 
I had said yesterday, I have been following the tracks, and the 
only way for the American people to figure out how you might 
rule is to follow your record and to follow the tracks.
    And we know this: You have said you consider Justice 
Scalia, one of the most conservative judges in our Nation's 
history, as a mentor.
    You have criticized the decision written by Justice Roberts 
upholding the Affordable Care Act. In a 2015 NPR interview, you 
praised the dissent by Justice Scalia in another Affordable 
Care Act case, saying the dissent had the better of the legal 
argument.
    You signed your name to a public statement featured in an 
ad that called for an end to what the ad called the ``barbaric 
legacy'' of Roe v. Wade, which ran on the anniversary of the 
1973 Supreme Court decision.
    You wrote your own dissent disagreeing with longstanding 
Court rulings on gun safety, expressing your legal opinion that 
some felons should get guns.
    And you once discussed a dissent in the marriage equality 
case asking whether it was really the Supreme Court's job to 
make that decision.
    So, to me, these tracks lead us to one place, and that is 
that you will have the polar opposite judicial philosophy of 
Justice Ginsburg, and to me that would change the balance of 
this Court, which is already 5-4, and known as very 
conservative when you look back through history, to 6-3--6-3, 
and that would have great repercussions for the American 
people.
    So, I wanted to follow up on something that Senator Harris 
and I asked you about yesterday, and that is the issue of 
whether or not you understood the President's clear position on 
the Affordable Care Act before you wrote the article in which 
you criticized the legal reasoning for upholding the Affordable 
Care Act.
    [Poster is displayed.]
    Senator Klobuchar. The President tweeted just 1 day after 
you were nominated--that would be September 27th--that it would 
be a big win if the Supreme Court strikes down the health law. 
But before you were nominated--and this is what we showed 
yesterday--Donald Trump tweeted, promising that his judicial 
appointments will do the right thing on Obamacare, unlike 
Justice Roberts.
    Yesterday, you were asked by Senator Harris, prior to your 
nomination, were you aware of President Trump's statements 
committing to nominate judges who will strike down the 
Affordable Care Act? You said, ``I can't really definitively 
give you a yes-or-no answer. What I would like to say is, I do 
not recall hearing about or seeing such statements.'' And after 
she followed up, you said that the tweet ``wasn't something 
that I heard or saw directly by reading it myself.''
    Okay. So, I just want to go through some of the things that 
have happened over the last few years regarding the 
President's--really his obsession to repeal Obamacare. He said, 
``We will repeal and replace disastrous Obamacare,'' when 
accepting the Republican nomination at the Republican 
convention in 2016. Did you see that speech?
    Judge Barrett. At the Republican convention----
    Senator Klobuchar. In 2016. I am not asking if you were 
there. I was asking if you saw it on TV.
    Judge Barrett. No, I do not believe I watched any of the 
convention on TV.
    Senator Klobuchar. Okay.
    Judge Barrett. If I did, I do not remember any of it.
    Senator Klobuchar. He had said things like--it begins, he 
wants to immediately repeal and replace the disaster known as 
Obamacare. He has said that he wants to get rid of it. He has 
said in States of the Union, ``I am calling on Congress to 
repeal it.'' He said, ``Can you believe that Mitch McConnell, 
who has screamed repeal and replace for 7 years, could not get 
it done?''
    So, there have literally been hundreds of statements by 
him, by my colleagues, and I just find it hard to understand 
that you were not aware of the President's statements.
    Judge Barrett. I am aware that the President opposes the 
Affordable Care Act. I am aware that he has criticized the 
Affordable Care Act. I took Senator Harris' question yesterday 
to be referring to a specific tweet, maybe the one that you 
have behind you, about how he wanted to put a Justice on the 
Court to replace Obamacare. And I am definitely aware of that 
tweet now, and as I said to Senator Harris yesterday, it came 
up in some of my calls with--Democratic Senators brought it up, 
but I honestly cannot remember whether I knew about it before I 
was nominated or not. I am not sure.
    Senator Klobuchar. But you--did you have then a general 
understanding that one of the President's campaign promises was 
to repeal the Affordable Care Act when you were nominated?
    Judge Barrett. As I said before, I am aware that the 
President opposes the Affordable Care Act----
    Senator Klobuchar. Well, I know you are aware now, but were 
you aware back then?
    Judge Barrett. Well, it seems----
    Senator Klobuchar. When you were nominated.
    Judge Barrett. Well, Senator Klobuchar, I think that the 
Republicans have kind of made that clear. It has just been part 
of the public discourse.
    Senator Klobuchar. Okay, but just--is the answer yes then 
that you were aware----
    Judge Barrett. Well, Senator Klobuchar, all these 
questions, you are suggesting that I have animus or that I cut 
a deal with the President. And I was very clear yesterday that 
that is not what happened.
    Senator Klobuchar. Were you generally aware of the 
President's statements when you wrote in an article in the 
University of Minnesota Law School Journal in 2017, the same 
year that you became a Seventh Circuit judge, that he pushed 
the Affordable Care Act beyond its plausible meaning to save 
the statute, that Justice Roberts had done that? Were you aware 
of that, of the President's statements when you wrote that 
article?
    Judge Barrett. So, that article, Senator Harris told me 
yesterday, was published in January of 2017, and a law review 
article takes several months to go into production. So I cannot 
remember specifically when the conference was. That article 
came out of a conference for Randy Barnett's book. I cannot 
remember what it was, but I suspect it was before the election. 
It is not like I wrote it----
    Senator Klobuchar. Okay. But President Trump has been 
saying this in 2015, in 2016, and that is 2 years. It did not 
take you that long to write the article. So my question is 
simply: Were you aware of President Trump's opposition to the 
Affordable Care Act during that time?
    Judge Barrett. Senator Klobuchar, I have no idea, and I 
suspect that if the article was published in January, that I 
wrote it sometime before the Presidential election.
    Senator Klobuchar. Mm-hmm.
    Judge Barrett. And, again, I want to stress----
    Senator Klobuchar. Okay.
    Judge Barrett [continuing]. I have no animus to or agenda 
for the Affordable Care Act. So to the extent you are 
suggesting this was like an open letter to President Trump, it 
was not.
    Senator Klobuchar. Okay. In the 2017 University of 
Minnesota Law School Journal that we just discussed, one of the 
things you said is, ``There is a risk that a faction can run 
away with the legislative process, but there is also a risk 
that a faction will conscript courts into helping them win 
battles they have already lost fair and square.''
    Is that something you wrote in that article?
    Judge Barrett. I did. I was responding to an argument made 
by Randy Barnett in his book, ``Our Lost''--no, I do not know 
if it was ``Our Lost Constitution'' or not. But yes.
    Senator Klobuchar. So, I mean, that is what I am afraid has 
happened here. They have tried 70 times, the Republicans in 
Congress, to overturn Obamacare, and now they are bringing this 
case to the Court, and you are going to be sitting on the 
Court. And so--and I find it very hard to believe that you did 
not understand that when you wrote the article.
    So, I want to--there is one other piece of this, and that 
is the affect on the economy. And we all know this has been 
very difficult. My colleagues know this. According to one Yelp 
study, more than 800 businesses have closed every day, 30 
million people were out of work at the height of the pandemic, 
we are still down 10 million jobs.
    And so, one of the things that has been going on here is we 
have seen more and more consolidation, and leading me to 
antitrust, and that part of this, I think, is the COVID relief 
package we have to pass, but also antitrust.
    Competition is a driving force of our economy. Justice 
Ginsburg, in her nomination hearing, described the Sherman Act 
as a ``broad charter.'' She said that free enterprise ``is the 
spirit of the antitrust laws, and the courts construe statutes 
in accord with the essential meaning that Congress had for 
passing them.'' Do you agree with her statement?
    Judge Barrett. The Sherman Act is broadly worded, you know, 
insofar as it prevents contracts, combinations, and 
conspiracies in restraint of trade, and because that language 
is broad, courts have developed a robust doctrine of common law 
to enforce and bring about its promise of eliminating 
contracts, conspiracies, and combinations that restrain trade.
    Senator Klobuchar. Yes, and I think you and I have 
discussed this before, but in recent years, Supreme Court 
opinions--by the way, all decided over Justice Ginsburg's 
dissent--have made enforcing our antitrust laws even more 
difficult.
    As a textualist, how would you reconcile the broad language 
of the Sherman Act with recent judicial precedent that has 
substantially narrowed the application of the statute in 
practice?
    Judge Barrett. Let's see. I can say as a textualist how I 
would approach the Sherman Act, and in the case of the Sherman 
Act, you are right that it is broad language. The text of the 
Sherman Act, as the Court has determined over time, essentially 
permits the Court to develop a common law. So, I think--no, I 
have not really had occasion to decide very many antitrust 
cases on the Seventh Circuit, but it is an area, because it has 
largely been left to judicial development, that is controlled 
by precedent for the most part.
    Senator Klobuchar. Mm-hmm, it is, and that is my concern 
right now is, it has been so narrowed in its interpretation of 
the Sherman Act, the Clayton Act, that it has almost become 
impossible for people to bring those cases in any big way.
    I want to turn to something we talked about yesterday, 
which is elections. You worked on the recount in Florida that 
was related to the Bush v. Gore case, including on an absentee 
ballot issue on behalf of the Republican side of that case. Is 
that right?
    Judge Barrett. I did work on Bush v. Gore. I did work on 
behalf of the Republican side. To be totally honest, I cannot 
remember exactly what piece of the case it was. There are----
    Senator Klobuchar. Don't worry, I am not going to ask you 
that.
    Judge Barrett. Okay.
    Senator Klobuchar. We are in the middle of a global 
pandemic that is forcing voters to choose between their health 
and their vote. Are absentee ballots, or better known as 
``mail-in ballots,'' an essential way to vote for millions of 
Americans right now?
    Judge Barrett. That is a matter of policy on which I cannot 
express a view.
    Senator Klobuchar. Okay, that just--to me, that just feels 
like a fundamental part of our democracy, but okay. Let us try 
this: Have you ever voted by mail?
    Judge Barrett. I cannot recall a time that I voted by mail. 
It may be in college that I did when I was living away from 
home, but I cannot, as I am sitting here, specifically recall a 
time I voted by mail.
    Senator Klobuchar. Do you have friends or family that have 
voted by mail or are voting by mail?
    Judge Barrett. I have had friends and family vote by mail.
    Senator Klobuchar. And you understand we are operating in a 
moment where the President is undermining vote by mail, even 
though a number of Republican governors and Republican Senators 
are supportive of it.
    Many argue that Bush v. Gore, back to your earlier work, 
hurt the Court's legitimacy. If you are confirmed, the Supreme 
Court will have not one, not two, but three Justices--you, 
Justice Kavanaugh, and Chief Justice Roberts--who worked on 
behalf of the Republican Party in matters related to the Bush 
v. Gore case. Do you think that that is a coincidence?
    Judge Barrett. Senator Klobuchar, if you are asking me 
whether I was nominated for this seat because I worked on Bush 
v. Gore for a very brief period of time as a young associate, 
that does not make sense to me.
    Senator Klobuchar. I just think it is such a coincidence to 
me. I actually did not know it until yesterday, but will having 
Justices with this background, two of whom were appointed by 
the current President, decide any cases related to the upcoming 
election? Do you think that will undermine the legitimacy of 
the Court?
    Judge Barrett. Asking whether something would undermine the 
legitimacy of the Court or not seems to be trying to elicit a 
question about whether it would be appropriate for Justices who 
participated in that litigation to sit on a case rather than 
recuse, and I went down that road yesterday saying----
    Senator Klobuchar. I know. You said you would not recuse. 
That is why I thought it was so----
    Judge Barrett. That is not what I said. I said I would not 
commit----
    Senator Klobuchar. You are right. You said you would make--
announce your decision on recusal and you would not commit to 
recusing. But, again, I think the public has a right to know 
that now three of these Justices have worked on the Republican 
side on a major, major issue related to a Presidential 
election.
    One thing I wanted to revisit quickly, Smiley v. Holm. The 
reason I asked about that is that this would be unprecedented 
when we right now are in an unprecedented time where we have a 
President who refuses to commit to a peaceful transfer of 
power, working to undermine the integrity of this election, and 
yesterday you would not commit to recuse yourself from the case 
we just talked about.
    But, now we are considering your confirmation to the 
highest court in the land in the midst of this election. And in 
Smiley v. Holm, where the Supreme Court held that a governor is 
part of the legislative process, and, therefore, a legislature 
cannot unilaterally change election rules, that could be very 
important because we have a number of swing States where we 
have a legislature of one party, governor of the other. And we 
have this precedent that has been on the books for nearly 90 
years. Do you think that that is established Supreme Court 
precedent--it said that a governor is part of the legislative 
process?
    Judge Barrett. I actually am not familiar with that case, 
but it is precedent--obviously, it is a precedent of the Court.
    Senator Klobuchar. Okay. I wanted to turn to one last 
issue, and that is First Amendment and freedom of the press, 
near and dear to my heart. My dad was a journalist. He would go 
everywhere for a good story and cared a lot about freedom of 
the press.
    And, regrettably, our right to a free and independent press 
is under assault. We have witnessed unprecedented attacks on 
journalists and journalism in the past several years. Our 
President frequently uses his Twitter account to attack news 
organizations. He has accused the media of being ``fake news'' 
and called them the ``enemy of the people.'' Obviously, we also 
have journalists overseas that are under attack by dictators.
    I want to pay special tribute to those brave journalists 
whose dogged pursuit of the truth never waver, despite threats 
of imprisonment, violence, and even death, journalists like 
Jamal Khashoggi and the men and women of the Capital Gazette. 
Their legacy is proof that fear will not silence facts.
    The Founders recognized that a free press is vital to a 
vibrant and strong democracy, and that is why we need Supreme 
Court Justices who understand the importance of protecting the 
right of journalists.
    First, Times v. Sullivan, you know that is the landmark 
ruling in support of the First Amendment protections for the 
press and protecting journalists unless they say something 
untrue with actual malice. Justice Thomas has expressed 
skepticism with that case, writing in his concurrence in McKee 
v. Cosby that, ``If the Constitution does not require public 
figures to satisfy an actual malice standard in State law 
defamation suits, then neither should we.''
    Do you agree with Justice Thomas that the Court should 
reconsider the actual malice standard because it is 
inconsistent with the original meaning of the Constitution?
    Judge Barrett. Well, Senator Klobuchar, I cannot really 
express a view on either New York Times v. Sullivan or Justice 
Thomas' critique of it without violating the principle that I 
have repeatedly stated, that all nominees follow, that, you 
know, I cannot comment on matters of litigation or grade 
precedents that the Court has already decided.
    Senator Klobuchar. I also want to ask you about how 
journalists have been deterred from doing their jobs under the 
threat of jail time. After the Supreme Court's 1972 decision in 
Branzburg v. Hayes, many Federal courts of appeals have 
recognized what is called the ``reporter's privilege,'' which 
protects a reporter's First Amendment right to protect his or 
her sources from disclosure in certain circumstances. The 
Seventh Circuit, by the way, on which you serve, has rejected a 
constitutional basis for a reporter's privilege.
    Under its original public meaning, does the First Amendment 
protect a reporter's decision to protect a confidential source?
    Judge Barrett. Well, again, that would be eliciting a legal 
conclusion from me, which I cannot answer in a hypothetical 
form in the hearing. It is also a question, as you point out, 
that is closely related to ones that are being litigated.
    Senator Klobuchar. Okay. One last try. Do you agree that if 
reporters cannot protect their sources, they are less likely to 
be able to find confidential witnesses willing to share 
information--confidential informers willing to share 
information about issues of public importance?
    Judge Barrett. Well, Senator, that would both be a policy 
question, a matter of public policy, which I cannot express a 
view on, and, you know, presumably also one that might factor 
into the question of what the First Amendment protects. So, 
again, that is not something that I can give an opinion on in 
this context.
    Senator Klobuchar. Okay. I guess my last thing I will just 
say is I hope people watching out there are going to follow the 
tracks of this record and are going to vote. Thank you.
    Chairman Graham. Thank you. Senator Sasse.
    Senator Sasse. Thank you, Chairman. Welcome back, Judge 
Barrett. Let's start with how judges should look back on their 
career, at the end of it.
    So, if you are confirmed, 30 or 40 years from now when you 
hang up your robe and sit on a front porch in South Bend or 
wherever, probably with a big gaggle of grandkids around you, 
how will you judge whether or not you had a successful career 
as a judge and Justice?
    Judge Barrett. I would judge whether I had had a successful 
career by whether I had always acted with integrity; whether I 
had always followed the rule of law and resisted the temptation 
to twist the law in the direction that I wanted it to go; 
whether I had treated my colleagues kindly and with 
collegiality; whether I had mentored, helped, and had good 
relationships with my clerks and any assistants or staff that I 
had, because both the law and the people are important.
    Senator Sasse. And how would that differ from how a Senator 
should look back on her or his career after hopefully not 30 or 
40 years but, in my view, 12 would be a good limit? But how 
should Senators look back on their career, and how does it 
differ from judges?
    Judge Barrett. Well, let's see. So I probably cannot say 
how a Senator himself or herself would, but I will say as a 
citizen how I might evaluate a Senator's career at the end of 
it, and that would be to say that he pursued good policy. Did 
he, you know, sponsor legislation or vote for legislation that 
advanced the cause of the common good in the United States?
    Senator Sasse. So, I think when you corrected my question 
so that you did not even pretend it was a hypothetical, where 
you saw yourself as a Senator, I heard both Todd Young and Mike 
Braun just have these huge gasps of relief at the thought that 
you are not going to be running for Senate from Indiana at some 
point.
    [Laughter.]
    Senator Sasse. I think it has been clear in our 
conversations over the last 3 days that a number of us, who are 
excited about your originalism and who believe the job of a 
judge is very different from the job of a policymaker, do not 
think that polling has any place in the questions before us at 
this point. But it is sort of hard to sit here after 3 days and 
hear claims made over and over again about how much the 
American people are opposed to you or whatever.
    So, even though polling should have no place, just as a 
matter of correcting the record, I did happen to look up this 
morning, and the American people are overwhelmingly in favor of 
your confirmation. So, just since this record seems to have 
been distorted so repeatedly with this idea that the American 
people are opposed to this, the public view of your 
confirmation is overwhelmingly in favor. I think it is plus 17 
in the polling of this morning. But, anyway, I certainly do not 
want you to comment on that.
    I would like to transition to your writings a little bit. 
You again are a prolific writer. I think Justice Breyer is the 
only person currently sitting on the Court that I can see that 
looks like he has written more than you have, and he has got a 
few decades of extra time as an adult writing relative to you. 
Can you tell us how you think your writing might change in the 
future? How will you pick venues, topics, audiences? What will 
you write about as a Justice? Again, presuming confirmation.
    Judge Barrett. Yes. So I would say, you know, most of my 
writing was during my time as a full-time law professor. The 
only thing I have published, I think, since being confirmed to 
the bench was I published a lecture that I gave at Case 
Western. And then I edited a transcript of remarks that, you 
know, I gave on a panel, but it was not like a full-length 
article with an idea.
    I have found, frankly, that it is hard to manage, you know, 
all the demands of family life and the job and writing the kind 
of scholarly articles that I did in the past.
    If I remained on the Seventh Circuit and, you know, perhaps 
if I am confirmed at some point in the Supreme Court, I would 
like to do more of that, but more in the vein of, say, what 
Justice Breyer does now or what my colleague Judge Frank 
Easterbrook does, which is, you know, writing that is designed 
to kind of educate about ideas. I think Justice O'Connor's 
iCivics program, where she really set herself out to teach, you 
know, high school students and people in America about civics 
and how the civics process works, so I would see myself wanting 
to try to reach more general audiences. But if I have time, 
once my kids get a little bit older, maybe I will dip back into 
scholarly writing again.
    Senator Sasse. I think that is very helpful. I think it 
would be very useful if we had Justices who did more of that 
civics education. You have named a few. I think there are some 
others over the last 30 or 40 years who have also done a lot of 
public civics education. I differ with former Chairman Grassley 
of this Committee about whether cameras would be a good idea in 
the Court. Again, not asking you to opine on that.
    I am glad we get the audio transcripts. I am glad we have a 
lot of press that cover the Court. I think we would get a lot 
more Michael Avenatti nonsense if we had cameras in the Court. 
I think we right now get a lot of transparency into the Court, 
but we do not have as much theatrics from those who are arguing 
before the Court. So I think more cameras in the Court is a bad 
idea. More Justices before the public explaining the structure 
of our constitutional system would be a huge asset, and given 
your history with Notre Dame students and law students, it 
seems like a natural fit for you. So for what it is worth, I 
think you have a lot of people who would encourage you to take 
up that civic calling.
    To tackle a few of those constitutional structure questions 
for a popular audience, can you explain what the Ninth 
Amendment is about? Why do we have it?
    Judge Barrett. Well, it is often treated as a rule of 
interpretation. There is not a lot of substantive doctrine or 
any substantive doctrine under it. It is preserving--it says 
that, you know, the rights--that the individual's rights are 
preserved, that those not expressly granted are not taken away.
    Senator Sasse. And if we'd maybe broaden it from just the 
Ninth Amendment to the Bill of Rights in general. Why do we 
have one? And what would be different in our constitutional 
structure if we did not have the Bill of Rights?
    Judge Barrett. If we did not have a Bill of Rights, we 
would not have particular rights singled out for special 
protection. As I am sure you know, Senator, the Bill of Rights 
was added in 1791 because during the debate about the 
ratification of the original Constitution, many States objected 
to the fact that there was no Bill of Rights. The original idea 
when the Constitution--the original Constitution, and by that I 
mean, you know, beginning with Article I moving up--was that 
the very structure of Government protected rights, and there 
was not thought to be a need to have a Bill of Rights because 
it was thought that the separation of powers and the structure 
of federalism would be a protection for those rights. But those 
who really felt like they wanted the additional protection, the 
Bill of Rights prevailed, and James Madison drafted them, and 
they were ratified in 1791.
    Senator Sasse. So, I do not mean to put words in your 
mouth, I mean to lay out a hypothesis so you can expand upon it 
or correct me. But is it fair to say that most governments in 
human history have had a default assumption of prohibition, 
governments can do whatever they want, and citizens do not have 
rights unless governments proactively give them rights? The 
default assumption is you do not have freedom of religion in 
most governments across time and space, you do not have the 
freedom to start a business. And the American system starts 
with the opposite assumption, which is, that freedom is the 
default condition.
    People are created in the image of God with inalienable 
rights. These are pre-governmental rights, and the government 
has to have specifically enumerated powers. We, the Congress, 
have to authorize Article II branch, the executive branch, to 
go ahead and do anything. And if they do not have those 
authorities--they in the executive branch and the 
administrative agencies--they cannot do anything unless 
Congress gives them the freedom and the people's default 
assumption is freedom. And so our system is to flip the 
historic prohibition assumption, and we have a freedom 
assumption on people and a prohibition assumption on 
government.
    And so prior to the Bill of Rights, the structure of the 
Constitution was saying that we do not need to enumerate rights 
because the assumption is you have a right unless a prohibition 
has been created. Is that a fair way to think about it? And how 
would you expand upon it more eloquently since you teach this 
stuff?
    Judge Barrett. You are far more eloquent than I, Senator 
Sasse. No, I think that is an accurate description of how the 
Constitution--of the assumptions underlying our Constitution, 
that the assumption was that if Congress had limited power, it 
would not have the ability to infringe rights in the first 
place. And, of course, at the time the Constitution was 
ratified, the States were thought to have--because the people 
are closer to their State governments, you know, States--well, 
that is the point of federalism. Right? That citizens can have 
different policies in States and more influence over their 
State governments and their State legislatures than the Federal 
Government.
    Senator Sasse. What role does the Declaration of 
Independence play in interpreting the Constitution or what is 
the relationship between the two documents?
    Judge Barrett. Well, the Declaration of Independence is an 
expression of our ideals, expression of our desire to be free 
of England. It is not law, however. The Constitution is law. So 
the Constitution is our foundational law and a governing 
document, and, you know, while the Declaration of Independence 
tells us a lot about history and about the roots of our 
Republic, it is not binding law.
    Senator Sasse. What are the five freedoms of the First 
Amendment?
    Judge Barrett. Speech, religion, press, assembly--speech, 
press religion, assembly--I do not know. What am I missing?
    Senator Sasse. Redress or protest.
    Judge Barrett. Okay.
    Senator Sasse. Why is there one amendment that has these 
five freedoms clustered? Why do they hang together?
    Judge Barrett. I do not know what you are getting at on 
that one. You mean like what is the common denominator?
    Senator Sasse. Yes, I mean, why--I am getting back to this 
same idea that the Bill of Rights was sort of an attempt to do 
public catechesis. It was an attempt to say we already believe 
in limited government--we, the Founders. That is the brilliance 
of the miracle at Philadelphia, despite all the failures to 
live up to our ideals. But the 1787-1788 conversation was to 
say we believe in limited government because we believe in the 
limitless rights of people, and so they did not have a Bill of 
Rights. But later, when they started spelling it out, it is 
sort of like they got jazzed up trying to work this out for the 
American people. This is amazing stuff. And so I am just 
wanting to hear you reflect a little bit on the glories of the 
First Amendment. Even though it was not needed as a part of the 
structure at the beginning, once they added it, why five of 
them in the same amendment?
    Judge Barrett. I do not know why, actually, as a historical 
matter those were grouped. I am sure there is a story that I do 
not know there about why those appeared in the First Amendment 
all together rather than being split up in different 
amendments. I mean, assembly and protest and speech bear more 
relation to one another than necessarily free exercise, say.
    But I think, you know, they are in the First Amendment, you 
know, and I think that that reflects that those were core 
values, that reflects that the States who ratified the 
Constitution, the original Constitution, on the understanding 
that a Bill of Rights would be added, wanted protections like 
that to be included because they were really core to what the 
new Americans thought was going to be America.
    Senator Sasse. Thank you. I agree with you, and I think 
that some of why it is so useful to think about the five 
together in my mind is because you do not really have freedom 
of religion if you do not also have freedom of assembly, if you 
cannot gather with your co-religionists. You do not really have 
freedom of speech if you cannot also publish your beliefs and 
advocate for them. You do not really have any of those freedoms 
if you cannot protest times and seek the redress of grievances 
in times when government oversteps and tries to curtail any of 
those freedoms.
    And I think some of the important questions about judicial 
modesty in some of the last 3 days of hearings are very 
relevant and prudent to have had, but I also think there are 
times when there has been questioning that you have been put 
through that has implied that because you have free assembly 
rights as an individual when you were a faculty member or as a 
wife and mom and neighbor in South Bend, when you signed 
something walking out of church, that sort of implied that 
there was something inappropriate when the default assumption 
in our system is that we all have these freedoms because the 
civil society associations that we have are where we actually 
find happiness, meaning, joy, and love.
    I mean, the--one of the things that not just judges wearing 
robes need to have to demonstrate humility but all of us in our 
day callings as public servants for a time that who are 
eventually going to go back home to, you know, the Cincinnatus 
language of George Washington's Farewell Address to go back and 
sit under the tree at Mount Vernon is that this is not the 
center of the world. This is not--the institutions of power are 
not where meaning is found. The institutions of power are about 
serving the people by trying to maintain a framework for 
ordered liberty so that the places where the 330 million 
Americans actually live can be the center of life and meaning 
and association and religion and speech and press, that the 
heart of our system is actually volunteerism, entrepreneurship, 
community, neighborliness, and love, and power is just in 
service of that.
    Washington and later Lincoln's expansion upon it was the 
idea of the silver frame but the golden apple. The silver frame 
that is the constitutional structure is just to maintain the 
structure of ordered liberty so that people can pursue the 
good, the true, and the beautiful, the happy and the neighborly 
in the center of the picture because that is where love and 
community is found.
    I would like to pivot from constitutional structure to 
baseball for a minute, if you will bear with me. Any of your 
kids play baseball or softball?
    Judge Barrett. Two of our boys had a very brief career in 
baseball.
    Senator Sasse. Gotcha. Well, it is obviously not as great a 
sport as football, but we can still call it the ``American 
pastime.'' And, I would like to talk about the Houston Astros, 
who are miserable cheaters. Sorry, Cornyn and Cruz--both of the 
Texas Senators sit on this Committee. But, I think all baseball 
fans know that the Houston Astros cheat. They steal signs. They 
bang on cans. They have done a whole bunch of miserable things 
historically, and they deserve to be punished probably more 
than they have been.
    But tonight it is Game 4----
    Senator Cornyn. Thank goodness the First Amendment protects 
that right----
    [Laughter.]
    Senator Cornyn [continuing]. For him to express that 
erroneous opinion.
    Senator Sasse. If you want to defend cheating, that is 
certainly the prerogative of the senior Senator, and the junior 
Senator from Texas now rushes into the room to do some 
homerism----
    Chairman Graham. It was going so well.
    [Laughter.]
    Senator Sasse. I notice that Ted is wearing a Lone Star 
State flag but not an Astros mask.
    Tonight is Game 4 in the American League championship 
series, and if Houston loses to Tampa, they will be done. And 
that leads people to feel kind of desperate at times. Right? 
There are times when you have a game that is your elimination 
game. You can imagine people wanting to sort of reconsider 
anything they can reconsider. The ends might justify the means. 
And you could imagine that the Houston Astros, who have cheated 
in lots of ways in the past with sign stealing, might try to go 
to the umpire and try to persuade somebody to expand the strike 
zone just for Houston in the game tonight. That would obviously 
be inappropriate. Right?
    Judge Barrett. Right.
    Senator Sasse. We cannot have two sets of rules. Well, I 
think that an umpire is obviously supposed to apply rules 
fairly to both teams. I think we can all agree on that as rules 
of fair play. And I think some of what we have seen in the 
questions over the last 3 days are trying to get an umpire to 
commit to a different set of rules for different teams. And so 
for what it is worth, just to reiterate what I think so many of 
us have been trying to argue for in these hearings is the 
alleged equivalency between Republican and Democratic 
questioning here implies that Republicans have been trying to 
get you to pre-commit to certain policy outcomes, and I just do 
not think that that is actually what has been happening in this 
hearing.
    I think that the originalism that you have defended and 
that a lot of us have been advocating for in advance of and 
during this hearing is not a request for Republican policy 
positions to be advocated through the courts. It is, rather, a 
plea not just to you and to future nominees but to our 
Democratic colleagues as well to embrace a system where we 
again distinguish for the American people between the two 
political branches and the apolitical branch.
    The fact that you are before us to be confirmed to a 
lifetime appointment where you will put on a black robe is a 
liturgical act where you are cloaking your policy preferences 
in humility. It is obviously the case that we are all shaped by 
life experiences. It is obviously the case that people have 
lived in communities in the past, and most people who end up as 
extraordinary jurists have been connected to or around the 
political process at different points in their career. But that 
is not to undermine the ideals we have in the American system 
that judges should not see themselves as super-legislators; 
they should not see themselves as policy advocates; and they do 
have to take up this new oath to a greater humility. And it 
means that you lay down certain freedoms that are inalienably 
and innately yours prior to becoming a judge so that you do not 
have the appearance of bias and impropriety in the future.
    And so, I want to reassert the idea that we should be 
trying to excise from our language this idea of conservative 
and liberal blocs on the Court, Republican and Democrat 
Justices. What we want--and I want this to not just be a 
Republican aspiration, but I want it to be a Democratic 
aspiration as well again. What we want are people on the Court 
who understand with humility and modesty the judicial role, 
because it is a limited role. It is not a role to right all 
wrongs in society. It is not a role to be a policy advocate. 
And I think you have comported yourself extraordinarily well 
over the last 3 days as you have been repeatedly asked to be an 
umpire who prejudges certain cases, and it is not your job to 
do that until the reactive moment when you are actually on the 
Court. So, thank you for the civics lesson that you have 
offered Americans over the last 3 days.
    Thank you, Chairman.
    Judge Barrett. Thank you, Senator.
    Chairman Graham. Thank you.
    Senator Cruz. Mr. Chairman?
    Chairman Graham. Yes, here we go.
    Senator Cruz. Mr. Chairman, I was tempted to make a 
parliamentary inquiry if the unjustified broadside from the 
Senator from Nebraska violates Rule XIX of this body. But I 
decided not to when I came to the realization that Nebraska 
lacks a professional baseball team----
    [Laughter.]
    Senator Cruz [continuing]. And at times does not always 
have a winning football team either. And so I view it more as a 
plea for help than a substantive point, and I will say the 
remainder of the Senator from Nebraska's questions and exchange 
with Judge Barrett I thought was excellent and a wonderful 
civic education for all Americans. The scurrilous lies about 
the Astros I think should be stricken from the record and 
forgotten by all.
    [Laughter.]
    Chairman Graham. Thank you.
    Senator Sasse. Mr. Chairman, I will later be asking 
unanimous consent to submit to the record a little bit of 
historical information about the Houston Astros. But we will 
wait for now. Thank you.
    Chairman Graham. I cannot wait.
    Senator Cruz. Will you include a photograph of the World 
Series trophy?
    Senator Sasse. I think there is an asterisk hanging over 
the trophy.
    Chairman Graham. Well, number one, I want to thank Judge 
Barrett for not interrupting us during your hearing.
    [Laughter.]
    Chairman Graham. Senator Coons.
    Senator Coons. Thank you, Mr. Chairman.
    Thank you, Judge. Good to be talking with you again.
    These questions of fairness and who follows the rules and 
who are the umpires and do we win at all costs or do we respect 
the traditions of the game are centrally what is before us. So 
let us get to it with the 20 minutes we have, and thank you 
again to your family and everyone who has traveled with you 
today.
    Judge Barrett, in accepting President Trump's nomination to 
the Supreme Court, you stated you share the judicial philosophy 
of Justice Scalia, your mentor, the Justice for whom you 
clerked. His philosophy is, of course, originalism, essentially 
the idea that the authoritative meaning of the Constitution is 
what it meant when ratified, whether that was 150 years ago, 
240 years ago, but meant when ratified. And I think the 
American people need to better understand what that originalist 
philosophy could really mean for their everyday lives, because 
I think it means our entire modern understanding of certain 
constitutional commitments around liberty, privacy, and 
equality under the law could, in fact, be rolled back to 19th 
or even 18th century understandings in a way unrecognizable to 
most Americans.
    Many of these modern notions are rooted in a landmark case 
decided in 1965, Griswold v. Connecticut, where the Supreme 
Court held married couples have the right to use contraceptives 
in the privacy of their own home. In an interview just 8 years 
ago, in 2012, on Fox News, Justice Scalia said this decision 
was wrong because under his originalist philosophy there is no 
such thing as a general right to privacy in the Constitution. 
This is a question most currently serving Justices have 
answered.
    When we spoke on the phone last week, you said you could 
not think of any specific issue of law where you disagreed with 
Justice Scalia. Do you agree with him that Griswold was wrongly 
decided and, thus, States should be able to make it illegal to 
use contraceptives if they so chose?
    Judge Barrett. Well, Senator, as I've said a number of 
times, I cannot express a view, yes or no, A-plus or F. In my 
other capacity I get to grade, but not in this particular 
capacity with respect to precedent. I think that Griswold is 
very, very, very, very, very, very unlikely to go anywhere. In 
order for Griswold to be overruled, you or a State legislature 
would have to pass a law prohibiting the use of birth control, 
which seems, you know, shockingly unlikely. And then a lower 
court would have to buck Supreme Court precedent and say, ``We 
are not following Griswold.'' Again, seems very unlikely. So I 
think that it is an academic question that would not arise, but 
it is something that I cannot opine on, particularly because it 
does lie at the base of substantive due process doctrine, which 
is something that continues to be litigated in courts today.
    Senator Coons. Well, just for the benefit of those 
watching, Judge Barrett, as I think you well know, your 
predecessors talked about Griswold in detail. Chief Justice 
Roberts said he agreed with the Griswold Court's conclusion. He 
shared your view that he is comfortable commenting because it 
does not appear to be an area that would ever come before the 
Court. Justice Alito, Justice Kavanaugh said essentially the 
same thing, that they'd agreed. In fact, Justice Kagan, who you 
have been citing on the no grading, said, ``I do''--that she is 
willing to speak to it, and ``as every nominee has, I do 
support the result in Griswold.''
    I understand that you are saying to us you are going to be 
your own Justice and that you are very hesitant to talk about 
this case because it is an anchor to substantive due process. 
But let me just one more time say, are you unwilling to say, as 
so many currently serving Justices have, that at least Griswold 
is not wrong?
    Judge Barrett. I think Griswold is not going anywhere 
unless you plan to pass a law prohibiting couples or all people 
from using birth control. And I think the question--because it 
is entirely academic, because it seems unthinkable that any 
legislature would pass such a law, I think the only reason that 
it is even worth asking that question is to lay a predicate for 
whether Roe was rightly decided, because Griswold does lie at 
the foundation of that line of precedent.
    Senator Coons. Right.
    Judge Barrett. So, because Griswold involves substantive 
due process, an area that remains one subject to litigation all 
over the country, I do not think it is an issue, a case that I 
can opine on, but nor do I think Griswold is in danger of going 
anywhere.
    Senator Coons. Well, and to be clear about what it 
underlies, it is not just that Griswold was a landmark case, as 
you well know. It anchors a lot of modern liberty interests and 
personal and family autonomy. It was extended to unmarried 
couples in Eisenstadt. It was extended to the right for women 
to control their reproductive choices in Roe and in Casey. But 
it was also extended to support same-sex couple intimacy in 
Lawrence v. Texas and ultimately that same-sex couples have an 
equal right to marry in Obergefell.
    The reason I am taking a few minutes with this is that 
Justice Scalia publicly disagreed with or dissented in each and 
every one of these cases. He wrote in one of these decisions 
that it ``reflected the Court adopting the so-called homosexual 
agenda.'' And just last week, Justices Thomas and Alito issued 
an opinion stating the Supreme Court needs to ``fix problems 
from its holding in Obergefell.''
    So, I understand you will be your own Justice, and Justice 
Scalia's philosophy is significant, but I also think you have 
made it clear that it is largely your philosophy, and I am 
trying to help viewers understand what it means to replace a 
Justice Ginsburg with someone who may more closely follow 
Justice Scalia's approach.
    If Justice Scalia had had his way, we would be in a very 
different country with regards to gender discrimination. In one 
of Justice Ginsburg's most celebrated decisions in 1996, in the 
case involving Virginia Military Institute, she struck down 
their male-only admissions policy. Decades later, VMI honored 
Justice Ginsburg in recognition of the contributions its female 
alumni have made.
    Justice Scalia was the sole dissenter in that case and even 
accused the Court of destroying VMI, which remains standing and 
strong to this day. I am just getting at how closely you would 
ally yourself with Justice Scalia's jurisprudence. Would you 
agree with Justice Scalia that Justice Ginsburg's decision in 
VMI was wrong?
    Judge Barrett. Well, Senator Coons, to be clear, as I said 
I think in response to this question yesterday, I do share 
Justice Scalia's approach to text, originalism and textualism. 
But in the litany of cases that you have just identified, the 
particular votes that he cast are a different question of 
whether I would agree with the way that he applied those 
principles in particular cases. And I have already said, you 
know--and I hope that you are not suggesting that I do not have 
my own mind or that I could not think independently or that I 
would just decide like, ``Oh, let me see what Justice Scalia 
has said about this in the past,'' because I assure you I have 
my own mind. But everything that he said is not necessarily 
what I would agree with or what I would do if I were Justice 
Barrett. That was Justice Scalia. So I share his philosophy, 
but I have never said that I would always reach the same 
outcome as he did.
    Senator Coons. Understood, but I think a case like this is 
a striking example of what it might mean to replace Justice 
Ginsburg and her methodology and her approach with someone much 
closer to Justice Scalia. And, frankly, to me this comes back 
in part to the President who nominated you. President Trump did 
not nominate you to carry on Justice Ginsburg's legacy. He 
nominated you because he wants to undermine or change or shift 
that legacy, and he has been very clear repeatedly before you 
were chosen about his intent to nominate Justices in the mold 
of Justice Scalia.
    You recognized yesterday in an exchange with Senator Leahy 
that replacing Justice Scalia with Justice Garland, had Judge 
Garland become Justice Garland, would have changed the balance 
of the Court. It is something you wrote about in 2013 in the 
Texas Law Review. You recognized these balance shifts are why 
Supreme Court nominations are so much at issue in Presidential 
elections.
    Do you just acknowledge that your confirmation, even though 
you will not be identical to Justice Scalia, will profoundly 
impact the balance of the Court and the way in which it decides 
future cases?
    Judge Barrett. I think the statement that I was having an 
interchange with Senator Leahy about yesterday was about an 
interview that I gave shortly after Justice Scalia's death but 
after Judge Garland's nomination. And I did say that--use that 
phrase, ``lateral move,'' and what I meant by that--I mean, I 
very much agree with Senator Sasse that we should not talk 
about Republican judges and Democratic judges because I think 
there are just judges.
    But, of course, it is true that judges have differences in 
judicial philosophy. So I actually think Justice Breyer and 
Justice Scalia are a great example of this because they 
sometimes had public debates, with Justice Scalia advocating 
originalism and Justice Breyer advocating active liberty. And 
there is room on the Court for that, for having different 
approaches. It is not about having--you know, your colleagues 
on the other side of the aisle, you know, all of you in the 
room have different policy platforms.
    But judges do not have policy platforms, but it is 
certainly the case that judges take different approaches to 
interpreting the text. And that is what I meant when I was 
describing how the balance of the Court would shift. It would 
be away from one balance and toward another in terms of how 
judges think about the text.
    Senator Coons. And, Judge, what I want to explore with you 
in the time I have remaining is exactly how those shifts in 
methodology, in approach, may well have a dramatic impact on 
the policy outcomes on what is and is not upheld as law going 
forward.
    [Poster is displayed.]
    Senator Coons. On the board behind me, I have asked my team 
if we would just go back and look at cases. All of these cases 
listed--it is roughly 120--have something in common. Justice 
Ginsburg was in the majority, Justice Scalia was in the 
minority dissenting. And these are cases that touch on nearly 
every aspect of modern American life. I've talked a lot 
yesterday about healthcare and the Affordable Care Act. Yes, 
that is on there. A number of my colleagues have talked about 
some other areas. But what is striking is if you just look at 
what a 5-4 balance toward this methodology means if changed 
toward a 5-4 balance to this methodology, it has huge 
consequences--for education, for consumer rights, for access to 
the courts, for civil rights, for immigration, for 
environmental protection, for Native American rights, for 
workers' rights, for elections, for executive power, for 
reproductive rights, for free speech, civil justice, economic 
development, privacy, government misconduct, prisoner rights, 
capital punishment, gun safety, and criminal justice.
    In each and every one of these cases, if Justice Ginsburg 
had been replaced by a Justice with the same core 
methodological approach and view of the law and decision-
making, you cannot predict exactly how the case would have 
turned out, but in virtually every case it would have moved in 
a different direction and in a direction much closer to 
Scalia's philosophy and farther away from Justice Ginsburg. And 
that is why I think your views on precedent matter, and we 
should take a few minutes and go through them. It is something 
you have written about at length and where you are quite well 
grounded.
    The precedents of the Court, which is what these 120 cases 
are, are precedents upon which litigants, the average American, 
should be able to rely, and that is that whole issue about 
whether Justices are simply umpires calling balls and strikes 
or whether there is some agenda.
    My concern is that a leading scholar in the field of 
constitutional law has recently reviewed your writings and 
concluded that you demonstrate an extreme willingness and even 
radical willingness to revisit settled precedents. Some 
characterize you as more extreme than Justice Scalia in your 
approach to precedent and closer to Justice Thomas.
    The Supreme Court has long held, as you well know, that 
overturning precedent, a settled case, requires a special 
justification or strong grounds. But in a 2003 article in the 
University of Colorado Law Review, you wrote, and I am 
quoting--and I think I will get a chart here in a second that 
has this quote----
    [Poster is displayed.]
    Senator Coons [continuing]. ``Generally speaking, if a 
litigant demonstrates a prior decision clearly misinterprets 
the statutory or constitutional provision it purports to 
interpret, the Court should overrule the precedent.''
    What I see missing from this text and the broader context 
around it was anything about needing a special justification to 
overturn settled law or anything about the other factors the 
Supreme Court typically requires. You seem to be saying a judge 
should overrule any precedent as long as she thinks it is 
clearly wrong.
    If that is your view--and I think from this text it is--it 
basically means any precedent is at risk where your originalist 
view of the Constitution or textualist view of the statute says 
it is clearly wrong.
    Do you stand by this statement?
    Judge Barrett. Senator Coons, that statement was talking 
about the courts of appeal. I believe that statement was about 
the Due Process Clause, and as you probably stretch back from 
your lawyer days remember the principles of issue preclusion 
and claim preclusion.
    Senator Coons. Right.
    Judge Barrett. And that article was about how in the courts 
of appeals it had a very rigid rule that one panel could not 
overrule another; that those rigid rules on the courts of 
appeal were inconsistent or in tension with some of the courts' 
issue and claim preclusion doctrine.
    Senator Coons. Mm-hmm.
    Judge Barrett. So, it was not about normal functioning of 
precedent, especially at the Supreme Court where there are no 
such rules. And I would point out that the article was about 
circuit courts and courts of appeal, and in my time on the 
Seventh Circuit, I do not think there is any evidence that I 
have been unwilling to follow or apply circuit precedent.
    As for the scholar criticizing me as a radical on stare 
decisis, I am not sure who it was or the substance of the 
criticism, but I am very surprised because--I think it was my 
conversation with Senator Feinstein earlier--I explained that 
the article, which many people have plucked a sentence from, 
the Texas Law Review article, was a defense of the Supreme 
Court's approach to constitutional stare decisis. And----
    Senator Coons. Let's, if we can, let us move to that quote, 
because your words were not just limited to this context, to 
talking about individual litigants versus how issue preclusion 
works. It was a novel analysis, the 2003 article, something I 
had not thought of about how stare decisis impacts an 
individual litigant. But in this 2013 University of Texas Law 
Review article, which has also been referenced today, you 
wrote, and I am quoting, ``It is more legitimate for a Justice 
to enforce her best understanding of the Constitution rather 
than a precedent she thinks clearly in conflict with it.''
    Again, you are saying that if a Supreme Court Justice 
thinks a prior ruling was clearly wrong, she should disregard 
precedent with which she disagrees, regardless of the typical 
balancing factors.
    Judge Barrett. Senator Coons, with respect, as I explained 
this morning, that sentence has been plucked out of the article 
to kind of, I think, create a misimpression about the context. 
The whole article discussed reliance interests, discussed the 
reasons for stare decisis, and emphasized that courts ought not 
disrupt settled precedent absent very good reason to do so, 
reliance interests being one. And I think that no one on the 
Court, or even no one in this room, would think that the Court 
ought never revisit its precedent. As I was mentioning, maybe 
it was to Senator Leahy earlier, you know, Bowers v. Hardwick 
held that certain sexual conduct between same-sex partners was 
illegal, it was criminalized. And then Lawrence v. Texas 
overruled that. And my guess is that you think Lawrence v. 
Texas was correctly decided, so I do not think, Senator Coons, 
that your position would be that no precedent should ever be 
revisited.
    Senator Coons. Correct. I do think, in grievously wrong 
cases, it is appropriate to reach back, as a number of Members 
have discussed, around Brown v. Board and Plessy, and I did 
note that exchange earlier.
    But, in terms of reliance interests and the significance of 
reliance interests, in reading that 2003 Colorado Law Review 
article, you wrote that reliance ``should count much less, if 
at all, when a litigant convinces a court that precedent 
conflicts with the statutory or constitutional provision it 
purports to interpret.''
    I was struck by that language because I know you choose 
your words carefully. You have acknowledged reliance interests 
exist, and they are part of the Supreme Court and its approach. 
But in this article, it seems to me you are giving your own 
views about whether reliance should matter, and you are 
unequivocally stating it should not, it should matter less, if 
at all, when the originalist approach to reading the 
Constitution says this is wrongly decided. That is why, to me, 
the concern about reading the Constitution through a Scalia 
lens rather than a quite different, methodologically Ginsburg 
lens.
    You have also recognized originalists like yourself are 
more likely to overturn precedent. In the Texas Law Review 
article you cited statistics that self-identified originalists 
like Scalia and Thomas urged and joined in overruling 
precedents more than any other Justices over an 11-year period. 
The disturbing picture to me overall about all of this, about 
precedent, is that I think there has been a movement amongst 
originalists and a change in terms of the approach of judges to 
judging who self-identify as originalists.
    In the 2017 article in the University of Minnesota--in 
``Constitutional Commentary,'' that has been referenced before, 
you said, and I am quoting, about modern originalists, that 
``they've abandoned the claim one should be an originalist 
because originalism produces more restrained judges.''
    Do you stand by that characterization?
    Judge Barrett. Well, Senator Coons, I just want to point 
out that in this whole discussion, you know, I did write that 
Colorado article in 2003. I do not recall that sentence or its 
context. But in my full body of work, including everything that 
has come before, including the 2013 Texas Law Review article, I 
have written at great length about the virtues of stare decisis 
and the stability interest it serves.
    And in my scholarship, I have also talked about other 
features of the judicial system. And, also, I would like to 
point out that nothing in my record in the Seventh Circuit 
shows disrespect for stare decisis. And, also, Justice Scalia 
did observe and follow precedent. It is not like Justice Scalia 
ever advocated an overthrow of stare decisis. So I just do not 
think there is any evidence to suggest that I am in there 
trying to burn up the 600 volumes of the United States Reports 
that are on the shelf. I do not have an agenda in that regard.
    Senator Coons. Well, that is so exactly what caused me 
concern, as I looked at Thomas versus Scalia and which may be 
more the role model you follow in terms of the application of 
stare decisis. These quotes jumped off the page. I have not 
made a practice of reading 50-page law reviews recently. I do 
not mean to suggest----
    Judge Barrett. I do not recommend it.
    Senator Coons. They were compelling and well written. But 
these quotes struck me as clear statements of a view or an 
intent. And as I have said before, the larger challenge here is 
not what you have said about your views on cases but what the 
President who has nominated you has said about his goals and 
his objectives for your service on the Court. And, frankly, my 
concern about originalism and an activist willingness to 
reconsider precedent is that, in combination, Justice Scalia's 
views often expressed in sharply worded, memorable--memorable 
dissents, may make for great academic reading, but I think most 
Americans do not expect them to become the law of the land. And 
in a long line of cases, they would overturn well-settled 
precedent that I think we have all come to expect.
    So, my core concern here, Your Honor, is that your 
confirmation may launch a new chapter of conservative judicial 
activism, unlike anything we have seen in decades. And the 
point of the chart was to just show--we have mostly been 
talking about the Affordable Care Act and privacy-related 
cases, but if that is true, it could touch virtually every 
aspect of modern American life. I pray that I am wrong. I hope 
that I am. But in my reading of your work, nothing has 
alleviated my grave concerns that rather than building on 
Justice Ginsburg's legacy of advancing privacy and equality and 
justice, I am concerned, in fact, you will take the Court in a 
very different direction. And so, with all due respect, I will 
be voting against your confirmation, Your Honor.
    Thank you, Mr. Chairman.
    Chairman Graham. One brief comment. The 6 super-precedent 
cases, how many were there? Five? Six? I don't know.
    Judge Barrett. Oh, let's see. This is going to be just like 
when Senator Sasse asked me how many there were.
    Chairman Graham. Well, we know where they are at.
    [Laughter.]
    Judge Barrett. There was Marbury. There's Brown. There's 
Mapp v. Ohio. There are the civil rights cases.
    Chairman Graham. So, just very briefly for the public, the 
reason those cases were picked by you, nobody is suggesting in 
today's world that it's not the Supreme Court's decision to 
interpret the Constitution, Marbury v. Madison.
    Judge Barrett. That's correct. And to be clear, those, that 
list was formulated by other scholars----
    Chairman Graham. Right.
    Judge Barrett [continuing]. That's referring to it.
    Chairman Graham. Not just your list.
    Judge Barrett. Nobody thinks that Marbury v. Madison and 
the Court's authority to----
    Chairman Graham. Yes, right.
    Judge Barrett [continuing]. Interpret the Constitution.
    Chairman Graham. And nobody in America is wanting to go 
back to segregation.
    Judge Barrett. No.
    Chairman Graham. No legislative body is attempting to do 
that for a good reason. America does not want that. Nobody in 
their right mind wants that. The rest of these cases that have 
been listed as super-precedent have that commonality: 
overwhelming acceptance. Is that correct?
    Judge Barrett. Yes, that is correct.
    Chairman Graham. As to Roe and Casey and to Heller and to 
Citizens United, active litigation going on right now, today. 
Is that correct?
    Judge Barrett. That is correct.
    Chairman Graham. Senator Hawley.
    Senator Hawley. Thank you, Mr. Chairman. Judge Barrett, 
good to see you again.
    Are you aware of any active litigation challenging the 
constitutionality of Griswold v. Connecticut?
    Judge Barrett. I am not.
    Senator Hawley. Are you aware of any litigation in recent 
decades challenging the constitutionality of Griswold v. 
Connecticut?
    Judge Barrett. I am not.
    Senator Hawley. Are you aware of any legal movement out 
there to challenge the constitutionality of Griswold v. 
Connecticut?
    Judge Barrett. I am not, although, Senator Hawley, as I 
said to Senator Coons, I am certainly not aware of anybody 
trying to make the argument that a legislature should prohibit 
the use of birth control, but as you know, Griswold does lie at 
the base of the doctrine that very much is challenged in 
Federal court----
    Senator Hawley. Here is my point. I was 7 years old when 
Judge Robert Bork came before this body. I don't remember any 
of that.
    [Laughter.]
    Senator Hawley. I wasn't watching it as a 7-year-old, but 
what we saw, I think the legacy of the Bork hearings continue 
to reverberate.
    His name has become a verb: the borking of nominees. I 
think what we have seen today is an attempt at borking of Judge 
Amy Barrett. The problem is, they don't have anything in your 
record that they could use to so badly misconstrue to suggest 
that you are somehow going to fundamentally change America that 
now they have to attribute to you the worst readings and most 
Draconian misinterpretations of Justice Scalia. So, we take 
Scalia's record, we distort that, and then we attribute it to 
you.
    So, let me just come back to your relationship with Justice 
Scalia. I was under the impression that you were a different 
person than Justice Scalia and that you had, in your own words, 
your own mind. Is that fair to say?
    Judge Barrett. That is fair to say.
    Senator Hawley. Is it fair to say that you are an 
independent woman and an independent jurist and an independent 
professional, and also, by the way, a pretty darn good lawyer, 
and you will make up your own mind on the decisions, cases, 
controversies, that come before you to the Supreme Court of the 
United States. Is that fair to say?
    Judge Barrett. Yes.
    Senator Hawley. I think maybe, then, we can put to rest 
this attempt to constantly leverage the worst interpretations 
of Justice Scalia's philosophy, misrepresentations and 
attribute them all to you as if you are the same person. 
Frankly, I think it is demeaning and insulting, and I am glad 
that you pointed that out in response about your independence 
at the last question.
    Let me ask you about another set of questions, just 
briefly, you had this morning. Senator Leahy asked you about 
the Foreign Emoluments Clause, which is in Article I, Section 
9, Paragraph 8. He asked you whether it was best characterized 
as an anticorruption clause, you might remember that, in terms 
of foreign influence and foreign interference. And then he 
referenced the President and various allegations about foreign 
influence.
    Since he asked you about it and since he asked about 
foreign influence in government, I think it is only fair that I 
ask whether, hypothetically speaking, just hypothetically, if 
there were, let's say, a Vice President to the United States 
who hypothetically had an adult son, who hypothetically worked 
for a foreign oligarch, who then sold access to his father, the 
Vice President, and his father then intervened in a case to 
make sure that that oligarch wasn't prosecuted, hypothetically, 
would that violate, would that constitute the kind of foreign 
corruption that the Constitution is concerned about?
    Judge Barrett. I can't answer hypotheticals.
    Senator Hawley. Well, I thought you might say that, and I 
am glad you don't and won't because, who knows? That case may 
come before you, but I think it is a fair set of questions to 
ask.
    Let me ask you about something different. Section 230 of 
the Communications Decency Act passed by Congress in 1996, 
yesterday, Justice Thomas issued a dissent from a denial of 
certiorari in a case called the Malwarebytes case.
    Now, I bet you haven't had a chance to see his----
    Judge Barrett. I was just about to say, please don't ask me 
about it, Senator Hawley, because I didn't have a chance to 
read anything yet.
    Senator Hawley. Well, let me read to you just a few parts 
of it. It is quite significant, I think. Here is from the 
opening paragraph: ``When Congress enacted the statute,'' 
meaning Section 230 of the Communications Decency Act, ``most 
of today's major internet platforms did not exist, and in the 
24 years since, we have never interpreted this provision''--
``we,'' meaning the Supreme Court, ``but many courts have 
construed the law broadly to confer sweeping immunity on some 
of the largest companies in the world.''
    He's talking about the Big Tech companies, and he quite 
methodically, over 24 pages, or I'm sorry, 10 pages, goes on to 
set out the ways in which courts at the behest of these tech 
companies have dramatically rewritten Section 230, changing its 
liability standards. He talks about changing the distinction 
between publisher and distributor liability, changing the 
immunity shield, changing the narrow liability shield, 
extending 230 to protect companies from a broad array from 
traditional product-defect claims. He says--it's quite a 
thorough statement.
    Here is my question to you. You haven't read this. I don't 
think you have had a Section 230 case.
    Judge Barrett. I haven't.
    Senator Hawley. So, in general, not about his dissent from 
denial, but in general, what are the dangers of, if the Supreme 
Court or any court, rewriting a statute departing from the text 
that Congress or a legislature or a lawmaking body, departing 
from the text that they have written that has been adopted, 
presented and adopted, what are the dangers in that if a court 
departs from that and substitutes its own judgment, whether it 
is done in one opinion over a series of years?
    Judge Barrett. So, as you've posed the question, without 
respect to Section 230, just in general, the danger of a court 
doing that is to subvert the will of the people.
    You represent the people. As, you know, has been pointed 
out over the course of the hearing, judges are not elected, and 
they have life tenure and can't be voted out of office. So, if 
judges misconstrue statutes or bend them to the judge's idea of 
what would be good public policy, then it deprives the people 
of the chance to express the policies that they want through 
the democratic process.
    Senator Hawley. And the effect can be cumulative, can't it, 
I mean, you can start with a change to the statute, a rewrite 
of one provision of the statute that then becomes precedent, 
and then when the court revisits this case later, revisits the 
issue later, then they expand that and do a little more 
rewriting, and pretty soon, 5 or 10 or 15 years later, you are 
with something that has been so heavily blue-penciled, so to 
speak, that it doesn't bear much resemblance at all to the 
original statute. I mean, that is a danger of courts 
continuously substituting their own judgment.
    Is that fair to say?
    Judge Barrett. That can happen.
    Senator Hawley. So, let me just say my opinion, not yours, 
I think it is pretty clear that has happened with Section 230. 
I think Justice Thomas does an outstanding job here of laying 
out why that is the case.
    Let me ask you in a related vein, Justice Holmes, Oliver 
Wendell Holmes, Jr., said in the famous Lochner case, in his 
famous dissent in that case over a century ago, he said the 
Fourteenth Amendment does not enact Mr. Herbert Spencer's 
social statics.
    Do you agree with that statement? What do you think he was 
getting at with that?
    Judge Barrett. So, Justice Holmes' famous dissent in 
Lochner, which was later the position adopted by the Court, is 
that, you know, courts shouldn't pour their ideas of good 
economic policy into the Fourteenth Amendment to stand in the 
way of policies that the legislatures enact; for example, on 
questions of maximum hours for bakery workers or minimum wages 
and those kinds of things.
    Senator Hawley. You mentioned economic policy. Talk just a 
little bit about how a court could substitute its own views 
of--on economic policy for those of a law-enacting body of a 
legislature or of Congress.
    Judge Barrett. Sure. Well, in that era, you know, in the 
Lochner era, and then, we saw it also in the cases that 
preceded the switch in time, the Court was standing in the way, 
I guess, in Lochner itself, in the way of reforms for workers 
that legislatures were enacting, and so, if say, one had a 
preference for free trade or if one had a preference for having 
no minimum wage or having a minimum wage, to hold such a 
statute that did the opposite of your policy preference 
unconstitutional, because it didn't comport with your idea of 
the best economic policy, would be to thwart the will of the 
people without warrant in the Constitution.
    Senator Hawley. Are there dangers in courts acting as--let 
me preface this by saying most judges are not economists, some 
may be, but most judges are not economics experts. Are there 
dangers, in general, with courts acting as economic 
policymakers, deciding economic policy, making economic 
judgments, I mean, is that something that courts should be wary 
of as outside their area of expertise?
    Judge Barrett. Well, I am certainly not an economist. I 
think courts are expert in interpreting law. You know, we've 
been trained in law schools and that's what we're good at and 
that's what we should stick with.
    Senator Hawley. I raise these concerns, and I raise them in 
conjunction with Section 230, because it seems to me that in 
the closely related antitrust context, we have seen over a 
period of many years, courts substitute their economic judgment 
in many cases for what the words the statutes actually say and 
what, perhaps, the fairest interpretation of statutes might 
actually be. And whether it is Section 230 or the antitrust 
laws, one effect of this is to see growing concentrations of 
power in this country economically that I think are very 
significant threats to the ongoing operation of our democracy, 
to the basic ability of the people, to control the levers both, 
of the economy and of culture and of government, and I am 
afraid, I think, that courts have some role in this, and much 
the way that Justice Thomas suggested in his dissent from 
denial yesterday, and I think it is hard to ignore it in the 
antitrust context, as well.
    So, I won't ask for your view on this because these are 
cases, these are issues that you very may well be called upon 
to weigh in on--I hope that you are--but I hope that you will 
give these issues consideration and the, I think, very well 
taken warning of Justice Holmes in Lochner. I think, perhaps, 
that insight has been lost sight of, in many cases, by both 
Republican appointees and Democratic appointees, over many 
years on the Supreme Court in a variety of areas.
    Let me transition to one other area of law that is very 
important. Back to the First Amendment and to the free exercise 
of religion. You had an interesting free exercise case 
recently. You were on the panel, you didn't write the decision. 
This is the Pritzker case, Illinois Republican Party v. 
Pritzker, decided on September 3rd of this year. So, it's quite 
recent. It was just last month.
    This is a case in which the governor of the State was sued 
because in the words now of the opinion I'm quoting, his 
executive order relating to COVID lockdowns, quote now, 
``exhibits special solicitude for the free exercise of 
religion.'' And the case, in a roundabout way, challenged that 
special solicitude for churches and religious organizations. 
You joined the opinion in full. You didn't dissent.
    Judge Barrett. Right.
    Senator Hawley. Can you say why you joined the opinion and 
why you think that the content here is right, why the holding 
is correct?
    Judge Barrett. Sure. So, in that case, the Illinois 
Republican Party said that because the executive order in 
Illinois had given an exception for the free exercise of 
religion, for example, so that people could gather at churches 
or synagogues or mosques, that that same special protection had 
to extend to the Illinois Republican Party, and, indeed, by 
logical extension to everyone, so the whole order would fall, 
because religion couldn't be singled out for special treatment 
and that that right to free speech, free assembly, et cetera, 
that it was, under First Amendment doctrine, a content based 
distinction that could not survive.
    And what that opinion said about that is that it was 
permissible for the governor of Illinois to carve out an 
exception for free exercise and that doing so didn't compel the 
government to extend the same protection to everyone. As Judge 
Wood said, you know, very well, in that opinion, trying to 
accommodate a right explicitly mentioned in the Constitution in 
the First Amendment did not put the COVID order in jeopardy.
    Senator Hawley. And the opinion is very firm on this point. 
You quote from the Hosanna-Tabor case, which you and I 
discussed a little bit yesterday, unanimous case from the 
Supreme Court. This is the opinion, quoting from that case: 
``The First Amendment itself gives special solicitude to the 
rights of religious organizations.'' That's the Hosanna-Tabor 
case.
    This opinion that you joined goes on to say, ``There can be 
no doubt that the First Amendment singles out the free exercise 
of religion for special treatment, rather than being a 
mechanism for expressing views as the speech, press, assembly, 
and petition guarantees are, the Free Exercise Clause is 
content based,'' as you just said. ``The mixture of speech and 
music and ritual and readings and dress that contribute to the 
exercise of religions the world over is greater than the sum of 
its parts.'' In other words, what I understand, correct me if 
I'm wrong, what I understand the panel to be saying is the free 
exercise of religion isn't reducible to the free exercise of 
speech. It isn't reducible to the free exercise of assembly.
    Those are important rights. Those are also protected by the 
First Amendment. But the free exercise of religion protects 
something different and more; it protects the rights of 
religious people and religious organizations of all backgrounds 
the world over, but of course, in this country for Americans, 
it protects them and gives them special solicitude under the 
First Amendment.
    Have I got that correct?
    Judge Barrett. Yes. To be clear, I can't take credit for 
the eloquent language. That was Judge Wood's language on the 
panel opinion that I did join.
    Yes, but the point that the panel opinion makes is that the 
free exercise of religion is singled out for its own protection 
in the First Amendment, rather than being a subset of speech. 
And the position that the Illinois Republican Party took in 
that case would have been more of putting everything under the 
speech umbrella.
    Senator Hawley. And why do you think that is an important 
point of constitutional law?
    If I could ask you to put on your--I'm not asking you to 
comment on cases--but if you could put on your constitutional 
scholar hat, why is it significant that the First Amendment 
give special solicitude, as this decision says, as the Supreme 
Court has repeatedly said, special solicitude to the rights of 
religious associations, religious believers, religious worship, 
and exercise?
    Judge Barrett. I think that case, itself, the Illinois 
Republican case, shows why this distinction can matter, because 
as our panel held in that case, the outcome may have been 
different if we had been treating it solely as a free speech 
question. Because the Court has said that content based 
distinctions, you know, under the First Amendment, get strict 
scrutiny and it can be hard to satisfy. So, the case might have 
come out differently had it only been speech at issue. The case 
came out as it did because free exercise was also at issue.
    Senator Hawley. I think in this time when we see many 
challenges to the rights of religious organizations, their 
ability to meet freely, and where, frankly, we see many 
instances around the country where religious organizations are 
treated--religious churches, synagogues, mosques are treated 
less favorably than secular counterparts, whether that's 
casinos or gyms or liquor stores, you name it, but so many 
different executives around this country have chosen to single 
out churches for disfavor, whether it is in the COVID context, 
which is what this case is about, or another context.
    I think that the holding of this opinion is very, very 
significant and the Supreme Court's doctrine in this line of 
cases about the rights and the special solicitude, in the 
Court's words, for religious organizations is very, very 
significant.
    I will just conclude by saying, Judge Barrett, that it has 
been a privilege to get to speak with you these last couple of 
days. Congratulations to your family and to Jesse. I think you 
have been, your answers to these questions have been really, 
really exceptional. I have been extremely impressed, and I was 
impressed to begin with.
    And I just want to put a finer point on something that 
Senator Sasse said earlier. He said, you know, you exercise 
your rights of assembly and free exercise and free speech when 
you were a faculty member. We have talked about that at length, 
the various positions you took, and he pointed out there is 
nothing wrong with that; you shouldn't be penalized for it.
    I just want to agree with the Chairman that I think there 
is nothing wrong with confirming to the Supreme Court of the 
United States, a devout Catholic, pro-life Christian, and it 
will be my privilege to vote for you.
    Judge Barrett. Thank you.
    Senator Hawley. Thank you, Judge Barrett. Thank you, Mr. 
Chairman.
    Chairman Graham. Senator Blumenthal.
    Senator Blumenthal. Thanks, Mr. Chairman. Welcome back, 
Judge Barrett, and to your family as well. I hope you got some 
rest last night. I think that's true of all of us.
    Judge Barrett. I did have a glass of wine. I'll tell you 
that I needed that at the end of the day.
    Senator Blumenthal. Well, let me just say, on that kind of 
point, you have a right to remain silent.
    [Laughter.]
    Senator Blumenthal. First, Mr. Chairman, I would like to 
enter into the record, some letters from the National Council 
of Jewish Women and 86 Jewish organizations, from gun violence-
prevention organizations, and from the Pro-Choice Caucus.
    Chairman Graham. Without objection.
    [The information appears as submissions for the record.]
    Senator Blumenthal. Thank you.
    There are a couple of loose ends that I would like to 
clarify from our conversation of yesterday. First of all, in 
our discussion of the Second Amendment, we both made reference 
to the Third Circuit and its ruling on whether or not 
individuals convicted of a crime could possess a firearm. And I 
think you cited the Third Circuit as supporting the idea that 
certain felons could possess firearms, if I am not mistaken.
    Judge Barrett. And I went back and checked that, too, and 
so, you're right, it was a splintered decision. And I was 
thinking of Judge Hardiman's opinion, which was close----
    [Audio malfunction.]
    [Whereupon the Committee was recessed and reconvened.]
    Chairman Graham. Sorry about the interruption there.
    Senator Tillis.
    Judge Barrett. Senator----
    Chairman Graham. No, your time is up.
    [Laughter.]
    Chairman Graham. Senator Blumenthal.
    Senator Blumenthal. Thank you, Mr. Chairman. That was 
almost the shortest questioning session you will ever have.
    Judge Barrett. I was getting ready to defend you and say, 
``Oh, no, it's Senator Blumenthal's turn.''
    Senator Blumenthal. Hard to keep track of us. I entered 
some letters into the record, Mr. Chairman, I believe, before 
we broke?
    Chairman Graham. Yes, sir. Without objection.
    [The information appears as submissions for the record.]
    Senator Blumenthal. And I began my questioning about the 
Third Circuit opinion in Binderup. I believe that you would 
agree that decision applied to misdemeanor offenses. Correct?
    Judge Barrett. Yes.
    Senator Blumenthal. Not to felons?
    Judge Barrett. Yes. I was thinking of the separate opinion 
that Judge Hardiman wrote I think for five, and it was a 
splinter decision, but the holding, I agree----
    Senator Blumenthal. So, it really does not support the 
dissent that you wrote in----
    Judge Barrett. Judge Hardiman's position does for the five, 
but you are right. I had misremembered the common judgment 
holding for the plurality.
    Senator Blumenthal. Thank you. I want to ask you also--or 
clarify, the quote that I read to you was from a speech that 
you gave to the Hillsdale College, May 21, 2019, and it was, 
quote--about your opinion, dissenting opinion in Kanter, quote, 
``It sounds kind of radical to say felons can have firearms,'' 
end quote. So, I just want to clarify that was the source of 
the quote that I read you.
    Judge Barrett. Yes, I, too, had--thank you. I, too, had 
looked at that because I was pretty sure I had not written the 
opinion. So I think, yes, it was in the course of explaining 
the opinion to that audience. I was saying it sounds kind of 
radical, but then going on to explain why it was not and the 
reasoning.
    But yes, thank you for correcting that, Senator.
    Senator Blumenthal. Thank you.
    I also want to go back to another aspect of our 
conversation because Senator Graham asked about it this 
morning. I showed you a letter that you signed from 2013 by the 
Notre Dame Faculty for Life and specifically a sentence, ``The 
unborn to be protected--we renew our call for the unborn to be 
protected in law and welcomed in life.''
    And then I asked you about the IVF procedure, whether it 
could be banned criminally under the Constitution. And you said 
to me that you could not answer that question in the abstract. 
You said we cannot answer questions in the abstract.
    I asked you about your legal opinion and position, not your 
personal beliefs or religious views. You understand that point?
    Judge Barrett. Yes, yes.
    Senator Blumenthal. And I am disappointed that, evidently, 
you cannot tell us or the American people whether you believe 
or your legal position is that IVF can be constitutionally 
banned because so many Americans depend on this medical 
procedure for the ability to have children.
    I also want to ask you, should courts, specifically the 
Supreme Court, be deciding the next Presidential election?
    Judge Barrett. So, the Presidential election, as with all 
elections, is a matter put to the voters to cast ballots.
    Senator Blumenthal. But the presumption should be against 
the courts deciding an election. It is the people and the 
voters who should decide. Correct?
    Judge Barrett. Let us see, Senator Blumenthal. So I think 
that occasions on which courts adjudicate election disputes are 
designed to protect the voters' choice and the right to vote. 
So, of course, the Supreme Court does not cast ballots. Voters 
cast ballots, and election law is designed to protect the right 
to vote.
    Senator Blumenthal. The courts should do everything 
possible to avoid embroiling themselves in elective politics.
    Judge Barrett. Rucho v. Common Cause says that, for 
example, gerrymandering is a political question because it is 
difficult in many circumstances for courts to develop 
judicially manageable standards to----
    Senator Blumenthal. Presumption should be against courts 
getting involved. Let me ask you about some precedents, and I 
am asking not about super-precedents.
    Judge Barrett. Okay.
    Senator Blumenthal. And, as you define super-precedents, 
they are cases so well settled that no political actions, no 
people seriously push for their overturning. I am not asking 
you about what other people may think about these cases or may 
do about them, and I am not asking you hypotheticals. These are 
real cases.
    First, Brown v. Board of Education. Do you think it was 
correctly decided? I know you told Senator Graham you thought 
so. I would like you just to clarify that point.
    Judge Barrett. Sure. So, as I said to Senator Graham when 
he asked me that question, I have spoken on that before in the 
originalism lecture that I give. So I said yes----
    Senator Blumenthal. As you sit here, correctly decided. 
Right?
    Judge Barrett. Correctly decided. Yes, I said that.
    Senator Blumenthal. Thank you. Let me ask you about Loving 
v.--the Loving case. Do you think that was correctly decided?
    Judge Barrett. Well, Loving follows directly from Brown. 
Brown was correctly decided, Loving as well.
    Senator Blumenthal. It was correctly decided?
    Judge Barrett. It was correctly decided.
    Senator Blumenthal. Thank you.
    Now let us talk about Griswold. Correctly decided?
    Judge Barrett. Well, Senator Blumenthal, the reason----
    Senator Blumenthal. I know you gave an answer--excuse me 
for interrupting.
    Judge Barrett. Yes.
    Senator Blumenthal. I know you gave an answer to Senator 
Coons, but this issue is more than academic. That was the word 
that you used. You said that it is very, very, very, very, very 
unlikely to be challenged, and maybe. But all the more reason 
that you should be willing to tell the American people it was 
correctly decided.
    I am asking about your legal position. Would you have been 
in the majority?
    Judge Barrett. Well, Senator, I have a couple of things on 
that. One is that the reason why I expressed a view on Brown to 
Senator Graham is that I do think what I have said in print, 
either in my scholarly work or in judicial opinions, is fair 
game. And I have expressly said in the past in the originalism 
lecture that I have given repeatedly that Brown was correctly 
decided.
    So, I think that was fair game. And Loving is 
indistinguishable from Brown. It flows directly from it. I am 
not opining----
    Senator Blumenthal. Loving involved interracial marriage, 
and Griswold involves a ban on contraception--criminal ban on 
the use of contraceptives, which, in turn, also involves 
Eisenstadt v. Baird. These are fundamental cases, and I am 
asking your legal position.
    I want you to keep in mind how many people are listening 
and watching because they may take a message from what you say. 
They may see what you say and be deterred from using 
contraceptives or may feel the fear that it could be banned.
    Judge Barrett. Well, Senator Blumenthal, the position that 
I have taken is whether a question is easy or hard, that I 
cannot offer an answer to it. And I would be surprised if 
people were afraid that birth control is about to be 
criminalized because I said to Senator Coons----
    Senator Blumenthal. You may be surprised, but Chief Justice 
Roberts said, quote, ``I agree with the Griswold Court's 
conclusion that marital privacy extends to contraception.''
    Justice Kennedy, ``If a hypothetical case were to be 
imagined that better fits within the privacy that I believe the 
Constitution protects, I could not think of a hypothetical 
better than Griswold.''
    At his hearing, Justice Thomas said, ``I believe the 
approach that Justice Harlan took in Poe v. Ullman and 
reaffirmed again in Griswold in determining the right to 
privacy was the appropriate way to go.'' And he reaffirmed 
Eisenstadt v. Baird.
    I am stunned that you are not willing to say an 
unequivocal, yes, it was correctly decided. I would have been 
in the majority.
    Lawrence v. Texas, which held that the Government cannot 
criminalize gay and lesbian relationships. Was it correctly 
decided?
    Judge Barrett. Senator Blumenthal, I--again, you know, I 
have said throughout the hearing that I cannot grade precedent. 
In the words of Justice Kagan, give it a thumbs up or a thumbs 
down----
    Senator Blumenthal. So you cannot give me a yes or no 
answer? Again, forgive me for interrupting, but my time is 
limited.
    Judge Barrett. Well, Senator Blumenthal, I cannot give a 
yes or a no, and my declining to give an answer does not 
suggest disagreement or agreement. And it certainly should not 
suggest that----
    Senator Blumenthal. I am asking your legal position, Judge, 
not your moral position, not a policy position, not a religious 
faith position. A legal position.
    Correctly decided, Obergefell v. Hodges?
    Judge Barrett. Senator Blumenthal, every time you ask me a 
question about whether a case was correctly decided or not, I 
cannot answer that question because I cannot suggest agreement 
or disagreement with precedents of the Supreme Court. All of 
those precedents bind me now as a Seventh Circuit judge, and 
were I to be confirmed, I would be responsible for applying the 
law of stare decisis to all of them.
    Senator Blumenthal. But Your Honor, think of how you would 
feel as a gay or lesbian American to hear that you cannot 
answer whether the Government can make it a crime for them to 
have that relationship, whether the Government can enable 
people who are happily married to continue that relationship. 
Think of how you would feel.
    Judge Barrett. Well, Senator, you are implying that I am 
poised to say that I want to cast a vote to overrule 
Obergefell, and I assure you I do not have any agenda and I do 
not--I am not even expressing a view in disagreement of 
Obergefell. You are pushing me to try to violate the Judicial 
Canons of Ethics and to offer advisory opinions, and I will not 
do that.
    Senator Blumenthal. Judge, you yourself wrote, in 2016 an 
article that you co-wrote, with John Nagle, called 
``Congressional Originalism,'' quote, ``A confirmation hearing 
answering hypothetical questions about the soundness of 
particular precedents is par for the course,'' end quote.
    It is par for the course because Americans want to know 
your legal positions on these issues, and they have a right to 
know? They deserve and need to know.
    And I am surprised, and I think a lot of Americans will be 
scared by the idea that people who want to simply marry or have 
a relationship with the person they love could find it 
criminalized, could find marriage equality cut back. I think it 
would be an America where I would not want to live.
    Judge Barrett. Well, Senator, to suggest that that is the 
kind of America I want to create is not based on any facts in 
my record. And that quote that you read to me from the article 
talked about it being par for the course for those questions to 
be asked, but did not say anything about whether it was 
appropriate for nominees to answer them.
    Senator Blumenthal. Others have answered that same 
question, and I am disappointed that you won't.
    Let me move on to another area. Last month, The New York 
Times published a series of bombshell reports dealing with the 
current state of the President's finances. There were a lot of 
revelations in that report, including that the President 
himself is responsible for loans totaling $421 million, most of 
which is coming due within 4 years.
    That amount of personal debt makes the President vulnerable 
to leverage, to manipulation, to coercion. His vulnerability 
makes him a threat to our national security.
    I am not going to ask you about that aspect of his finances 
or that he paid only $750 in income taxes in 2016 and 2017. I 
want to ask you about a fact that is critical constitutionally. 
During his first 2 years in office, the President received $73 
million from foreign sources.
    Now, in the interest of full disclosure, I just want to say 
I led a lawsuit involving 200 of my colleagues challenging the 
President's receipt of those foreign benefits and foreign 
payments as a violation of the Emoluments Clause. And we cited 
as well other payments and benefits that he received from 
India, Afghanistan, Kuwait, Qatar, Malaysia, Saudi Arabia, 
Slovakia, and Thailand, and more in violation of the Emoluments 
Clause.
    And we have been talking a lot about originalism. The 
Emoluments Clause was the premier anticorruption clause in the 
United States Constitution. As Edmund Randolph of Virginia said 
specifically, the Clause was intended to, quote, ``prevent 
corruption,'' end quote, by, quote, ``prohibiting anyone in 
office from receiving or holding any emoluments from foreign 
states,'' end quote.
    The lawsuit that I led was denied certiorari yesterday by 
the United States Supreme Court. The D.C. Circuit Court of 
Appeals ruled against us on the limited technical issue of 
standing. It did not deal with the merits. I hope that you will 
keep in mind the danger of corruption and the need to give 
citizens standing to enforce laws that prohibit corruption.
    Nobody is above the law. You have stated that position very 
well. And enforcement of laws that prevent corruption is vital, 
and my view is that the President, any President, must be held 
accountable. Do you agree?
    Judge Barrett. No man is above the law. I agree with that, 
as I have stated very clearly before. And I also want to assure 
you, Senator Blumenthal, that I will apply all laws and come to 
an open mind with all laws, including laws dealing with 
anticorruption.
    Senator Blumenthal. Let me ask you about a topic that 
really has not arisen much here.
    Judge Barrett. Okay.
    Senator Blumenthal. Climate change. One of my colleagues, 
Senator Kennedy, asked you about it late in the hearing 
yesterday, and your answer was, quote, ``You know, I am not a 
scientist. I have read things about climate change. I would not 
say I have firm views on it.''
    Do you believe that human beings cause global warming?
    Judge Barrett. Well, Senator Blumenthal, I do not think I 
am competent to opine on what causes global warming or not. So 
I----
    Senator Blumenthal. Well, we all have views on it.
    Judge Barrett. Yes, but----
    Senator Blumenthal. I am asking for your opinion.
    Judge Barrett [continuing]. I do not think my views on 
global warming or climate change are relevant to the job I 
would do as a judge, nor do I feel like I have views that are 
informed enough, and I have not studied scientific data. I am 
not really in a position to offer any kind of informed opinion 
on what I think causes global warming.
    Senator Blumenthal. I understand. And again, I apologize 
for interrupting. Do you agree with the President on his views 
of climate change?
    Judge Barrett. I do not know that I have seen the 
President's expression of his views on climate change.
    Senator Blumenthal. Okay. Let me ask you on another area. 
Are you aware of the Supreme Court, as it is called, ``shadow 
docket''?
    Judge Barrett. I am.
    Senator Blumenthal. Essentially, this docket consists of 
cases that are decided, often stays or extension of orders, 
without an opinion. Correct?
    Judge Barrett. Correct.
    Senator Blumenthal. And as a matter of fact, in the denial 
of certiorari in Blumenthal v. Trump yesterday, there was no 
opinion providing the reasons why they did so. We do not even 
know how many Justices supported the decision, except that 
there must have been at least five, and despite detailed 
reasoning from lower courts, which we challenged, about the 
issues, there was no opinion. And the same was true of the 
census decision, as you know.
    So, don't you think there should be transparency on the 
part of the Supreme Court?
    Judge Barrett. I think that the Court in the practice of 
denying cert petitions routinely--and you know, the shadow 
docket has become a hot topic in the last couple of years. But 
you know, even when I was clerking on the Court in 1998, it was 
not typical for the Court to issue opinions explaining why cert 
was denied, although sometimes there are dissents from the 
denial of certiorari, which have opinions. But as far as I 
know, it has never been the routine practice of the Court to 
have opinions----
    Senator Blumenthal. My time is limited, but I just want to 
leave you with the very strong message because increasingly the 
Court has turned to this shadow docket. In fact, it is growing 
larger. It is up to 6,000 cases every year where it rules 
without an opinion and without disclosing who voted which way. 
That strikes me as anti-democratic, with a small ``d.''
    It decides only about 80 cases on its merits docket every 
year, which is smaller than when I was a law clerk on the Court 
and probably when you were a law clerk as well. So, fewer cases 
accountable and less transparency.
    I am going to conclude here. I just want to say we tried to 
bring into this room real people who were going to be affected 
by your decisions. Some of them will lose their coverage. In 
fact, millions of Americans, including Conner Curran, will lose 
his coverage under the Affordable Care Act if he is denied the 
protection to people with pre-existing conditions.
    Legislative activism from the bench and the kind of 
activism that I fear you will bring to the Bench is one of the 
reasons that I will----
    [Audio malfunction.]
    [Whereupon the Committee was recessed and reconvened.]
    Chairman Graham. Sorry, Judge. Sorry to everybody, but 
technical problems happen and hopefully we can press on.
    Senator Tillis.
    Senator Tillis. Judge Barrett, thank you again.
    Four cases, U.S. v. Lopez, DC v. Heller, Hobby Lobby v. 
Burwell, Washington v. Glucksberg, were they correctly decided?
    Judge Barrett. Senator Tillis----
    Senator Tillis. You have got to put your mic on.
    Judge Barrett. Is it working now?
    Senator Tillis. Yes.
    Judge Barrett. Okay. Good. Senator Tillis, I can't express 
a view on the correctness of any precedent.
    Senator Tillis. So, I think it is pretty clear that it is 
not just cases favored by my Democratic friends. You are taking 
a very consistent position, and I think the American people 
should understand that. Thank you.
    I had a sheriff in Wake County--in North Carolina, you have 
to apply for a permit to purchase a handgun in North Carolina--
and for a period of time the sheriff of Wake County refused to 
process handgun permits. He has subsequently reversed that 
policy, so it is no longer an active case. But, you know, it 
would seem to me that that sheriff was making a decision that 
wades into, I think, a Second Amendment right. How would you 
evaluate a case like that if it came before you?
    Judge Barrett. So, if a case like that matured into 
litigation and went up the appellate process, I mean, I would 
look at the law, and obviously the Second Amendment would be 
relevant there, so I would, you know, read all applicable 
precedents, including Heller, to determine whether what the 
sheriff had done violated the Second Amendment right or not.
    Senator Tillis. Well, I think in that case it did but I 
would leave it to somebody far more qualified than you to take 
it forward, and I suspect it will if the sheriff reimposes the 
same imposition on lawful gun owners.
    I thought about this when Senator Hawley was asking a 
similar question. I finished my 68th telephone town hall since 
the first case was reported in North Carolina, and about a 
month into it everybody understood that we had to shut things 
down, try to understand how COVID was affecting us. But then 
about 4 to 6 weeks later we saw peaceful protests, some of 
which were hijacked, and we have seen them widely reported, 
allowed by certain liberal governors and other elected 
officials in towns and counties. But at the same time they have 
prevented churches from being able to worship. You enumerated 
the protections, the specific protections under the First 
Amendment, and I think religion and protest are two of them.
    Do you feel like any governmental entity has a right, on 
the one hand, to allow these protests to occur, and on the 
other hand, prevent worship in temples, synagogues, mosques, or 
any place of worship?
    Judge Barrett. Well, Senator, those kinds of cases are 
being litigated all around the country right now. You know, 
some have gone up to the Supreme Court on a couple of different 
orders, so those aren't things that I would be able to comment 
on.
    Senator Tillis. Are you able to opine at all on how you 
would go about evaluating the arguments?
    Judge Barrett. Sure. So whenever you have that kind of a 
restriction, like, you know, as we are in a pandemic, the 
Supreme Court's general position is that the Government has a 
compelling interest in responding to a health crisis of this 
sort. So you look at the caselaw describing the extent of a 
State's authority to address a public health crisis. You know, 
it has come up before in a case involving vaccinations.
    Then, you also--you know, and this was clear in my 
interchange with Senator Hawley--you also look at the other 
Amendments and other rights at play. So in the case that I had, 
you know, it involved the First Amendment, looking at the 
Speech and Free Exercises Clauses of that Amendment, so those 
come into play as well.
    Senator Tillis. Thank you. When you and I met a couple of 
weeks ago, I have to thank you, again, my daughter was thrilled 
that you signed the two pocket Constitutions for my two 
granddaughters, and they will cherish it some day when I can 
explain what it really means. It is going to take a few more 
years. One is 3 and the other one is 8 weeks.
    [Laughter.]
    Senator Tillis. And I really enjoyed that discussion, and I 
asked you there something I would like for you to share with 
the Committee. You have stellar academic credentials, you have 
stellar record as a professor, and you have done an excellent 
job on the Seventh Circuit. You have been a great mother and 
wife. You have so many options. There are so many things that 
you could be doing besides going through the first confirmation 
hearing, which was not pleasant. I was here and I remember it. 
And you knew that this was even going to be more challenging.
    So, I asked you when we met, why would you do this, knowing 
how this was going to play out, knowing that you were going to 
be attacked and unfairly treated? And I think, to a level of 
maybe where some of your constitutional rights have been 
questionably denied.
    So, why are you doing this, Judge Barrett? Why not just 
say, ``Thanks, but no thanks,'' leave it for somebody else?
    Judge Barrett. Well, as I said to Senator Graham yesterday, 
and I think this was part, you know, and parcel of the 
conversation that you and I had, that this is a very difficult 
process. Actually, I think have used the word ``excruciating'' 
over the weeks, and the knowledge that, you know, people are 
going to say horrible things, you know, that your entire life 
will be combed over, that you will be mocked, you know, that 
your children will be attacked.
    And so one might wonder why any sane person would undertake 
that risk and that task unless it was for the sake of something 
good. And as I said yesterday to Senator Graham, I do think the 
rule of law and its importance in the United States, and I do 
think the role of the Supreme Court is important. It is a great 
good. It would be difficult for anybody in this seat. I think 
everybody knows the confirmation process is very difficult. And 
so for me to say no, I mean, other people could do this job, 
but the same difficulty will be present for everyone.
    And so, for me to say, you know, I am not willing to 
undertake it, even though I think this is something important, 
would be, you know, a little cowardly, and, you know, I 
wouldn't be answering a call to serve my country in the way 
that I was asked.
    I also think, in our conversation, I said, you know, that 
my children were part of the reason not to do it, because, you 
know, my son, Liam, got very upset yesterday during the 
questioning and so, you know, we had to call him in the car. He 
didn't stick it out until the end. You know, I was surprised he 
stuck it out as long as he did. But Liam got very upset at the 
questioning, and Senator Kennedy referenced some of the other 
things that have happened to the children in the process.
    And so I said to you, before any of that happened, that in 
many ways the children are the reason not to do it, but they 
are also the reason to do it, because if we are to protect our 
institutions and protect the freedoms and protect the rule of 
law that is the basis for this society and the freedom that we 
all enjoy, if we want that for our children and our children's 
children then we need to participate in that work.
    Senator Tillis. Well, I think you are an extraordinary role 
model. A lot of people watching agree with Senator Blumenthal. 
A lot of people are watching this, and I hope that every one of 
them conclude that you are a courageous person, and you are a 
public servant. I mean, with your credentials and your 
experience you could move out of public service and do 
virtually anything you wanted to, and have more time with your 
family along the way. And the fact that you are willing to 
serve is just, I think, an extraordinary testament to your 
character and your integrity, and I appreciate you for it.
    You know, the other thing I wanted to get back to is on the 
issue of abortion. I think it is remarkable, over the course of 
the past couple of days, how many times they have--my 
colleagues on the other side of the aisle have challenged you 
on this matter. And in the same breath, they are advocating for 
activism. In one breath they want to secure certain Supreme 
Court precedent and on the other breath they want your 
commitment to potentially overturn it.
    But I want to talk specifically about a policy in Gonzales 
v. Carhart. I mentioned yesterday late-term abortions, partial-
birth abortions I thought were horrific all of my life, but 
especially since I held that premature granddaughter of mine 
who was born 3 weeks premature.
    How would you, if a case, as a matter of State law, or 
Federal law, let's say Senator Graham's bill, how would you go 
about evaluating maybe some laws that would prevent late-term 
abortions, partial-birth abortions? How would you go about 
evaluating that in light of Gonzales v. Carhart?
    Judge Barrett. Well, I would look at all the precedents. 
Casey, as we discussed yesterday, sets out the undue burden 
standard, which is the test, and then Gonzales v. Carhart, as 
you say, upheld a restriction on partial-birth abortion. You 
know, Whole Women's Health and June Medical are the most recent 
cases in the abortion line. So if I were to have to decide a 
case involving a bill like the one that Senator Graham has 
referred to, it would involve looking at all of those 
precedents and their application to the particular contours of 
the law that was before me.
    Senator Tillis. Thank you. Now, I am going to go in a 
slightly different direction. I was talking with Senator Coons, 
who is the Ranking Member on a Committee that I chair, a 
Subcommittee here on Intellectual Property. We have done a lot 
of work and we are working on a bipartisan, bicameral basis. 
And I have to thank Senator Blumenthal for probably being one 
of the more active Members in this Committee. I think it is an 
area where we really are working on a bipartisan basis, the 
things that the public seldom see.
    But I want to ask you first on antitrust. I know a district 
court opinion sided with the Federal Trade Commission that 
found that Qualcomm violated antitrust law, and the Ninth 
Circuit overruled that district court decision. I don't know if 
you followed it, but in the Ninth Court opinion they said that 
Qualcomm was a company just asserting its economic muscle with 
vigor, imagination, devotion, and ingenuity.
    I know you can't speak to that case but I am interested in 
your thoughts generally on antitrust law. Where do think the 
courts should draw the line on Federal antitrust limits between 
where a company violates an antitrust law or, as Qualcomm was 
characterized, of just asserting its economic muscle with 
vigor, imagination, devotion, and ingenuity?
    Judge Barrett. I haven't followed that case so I am not 
aware of that case from the Ninth Circuit. But I would be 
venturing out into that hypothetical, dangerous territory if I 
tried to articulate what hypothetical line to draw in the 
context of an antitrust law, because, well, as you probably 
know better than I, just being on the Committee, it is a 
complex area with lots and lots of precedent, and lots and lots 
of statutory and regulatory law as well.
    Senator Tillis. Moving to another area that has been 
addressed on the Committee on Intellectual Property and patent 
law eligibility, as judge--or, Judge, I should say--as Chairman 
of the Subcommittee, I am really interested in protecting the 
intellectual property of the American innovation economy. There 
is no question that we are the leader in the world. But in 
recent years we have seen a lot of Supreme Court cases that 
have waded into patent eligibility, producing a series of 
opinions that have really muddled the waters. And in some 
cases, I think they--I agree with the decision but I worry 
about the methodology that they use to get there.
    So, I am curious about your thoughts. In my Committee, we 
have talked about specific cases that we could potentially 
abrogate, if we could get bipartisan support, and we are in 
those discussions. But, what are your thoughts on the Supreme 
Court's rulings on patent eligibility, and do you think that 
the Court should go back and clarify at least the method that 
they used to reach their opinion?
    Judge Barrett. So, without commenting on any particular 
cases, which actually I have to be completely honest and 
confess to you, I can't think of what particular cases you 
might be thinking of on the patent eligibility. But, without 
commenting on those cases in any event, I think I would say 
that clarity in decision-making is always something that courts 
should strive for, and I know on the Seventh Circuit we try, 
and I try to be attuned to, when writing opinions, whether it 
gives good guidance to lower courts and then to also those who 
are trying to order their conduct, you know, in compliance with 
the law. So I think clarity is certainly a virtue in this 
context.
    Senator Tillis. And, I think that we are working, like I 
said, on a bipartisan, bicameral basis to help, or do it on our 
part.
    Copyright law and technology is another area that we focus 
quite a bit on. I think I had one witness say that our current 
laws are MySpace laws in a TikTok world. There are a lot of 
changes that have occurred, and we feel like there is a need 
for us to maybe move forward with some clarity and some 
protections.
    The Supreme Court has spent more than a century answering 
questions about whether copyright law covers new technologies 
like cameras, player pianos, moving pictures--the list goes 
on--several internet-enabled technologies. Do you think that 
the Supreme Court is the best institution to answer these 
questions or is that a role Congress should play?
    Judge Barrett. Most of the things you are identifying sound 
to me like matters of policy, so those seem like matters that 
are best addressed by the legislature, a democratically elected 
body, not policy made by courts.
    Senator Tillis. I agree. I think it is a complex subject 
and I am glad to hear your opinion and I hope that we make 
progress on it. And again, I have to thank Senator Coons and 
Senator Blumenthal and Senator Hirono who are on that 
Subcommittee, who have--I think we have worked well and I am 
hopeful that we will make progress.
    I think Senator Blumenthal asked you about the courts 
getting involved in elections, but before somebody goes out 
into the cyberworld and says nine people are going to decide 
the outcome of the election, nine votes versus the tens of 
millions of votes that are being cast now, will be cast by 
November 3rd, what you are potentially going to be confronted 
with are various lawsuits that may come in, based on changes in 
voting protocols for this cycle versus other ones. But at the 
end of the day, what role is the Court going to play, if any, 
in the determination? Nine people are not going to elect the 
President, regardless of who wins the election. But nine people 
are going to have to consider various cases. But at the 
foundation, is it accurate to say that your role will be 
determining whether or not every single American who wishes to 
vote had their vote recorded and was given proper access to 
make that vote? Is that fundamentally what the courts would 
decide?
    Judge Barrett. Fundamentally, if an election dispute arose, 
obviously the issue--it is impossible to predict what 
particular aspect of the election would be challenged. But the 
laws that would be invoked are laws that protect the right to 
vote, that keep elections fair. So those are the kinds of 
issues that have come up in past election disputes, and so 
certainly the Court would not see itself as--or it would not be 
electing the President. It would be applying laws that are 
designed to protect elections and protect the right to vote.
    Senator Tillis. I also want to thank you, in closing, Mr. 
Chairman, I want to thank you for reaffirming, I think in a 
discussion with Senator Durbin, possibly Senator Hawley, that 
you believe every single person in this country should have a 
right to vote, and that they should be able to do that without 
intimidation, without any undue burdens. And I appreciate you 
reaffirming that, and I just want to make sure I heard you 
right in your responses to other questions. You do feel very 
strongly that every American should have safe access to the 
vote, and I, for one, hope that every registered voter in this 
country vote on November 11th. That may be a stretch goal, but 
do you agree with that?
    Judge Barrett. Of course. Yes.
    Senator Tillis. Thank you, Judge Barrett, and thank you for 
your family for enduring all the challenges that you have. 
Thank you for your courage and thank you for your integrity. I 
look forward to supporting your nomination.
    Judge Barrett. Thank you, Senator.
    Chairman Graham. Senator Hirono.
    Senator Hirono. Thank you, Mr. Chairman.
    Today we are going through this hearing as though it is a 
normal hearing, not a rush job in the midst of a pandemic; 
200,000 Americans dead; no pandemic relief bill in sight for 
the American people; the fate of the ACA at risk. But the 
Democrats on this Committee have asked, and will continue to 
ask you questions to let the American people know that your 
being put on the Supreme Court will dramatically flip the 
balance of power to the Court further, further to the right, 
not the fair, impartial body we want the Supreme Court to be.
    Judge Barrett, yesterday you told Ranking Member Feinstein, 
quote, ``If there were policy differences or policy 
consequences those are for this body. For the Court it is 
really a question of adhering to the law and going where the 
law leads and leaving the policy decisions up to you.'' That 
would be us, in Congress. The effects of this distinction you 
made between law and policy, a distinction I described 
yesterday as artificial, can be seen in a case from earlier 
this year.
    In Cook County v. Wolf, you considered the Trump 
administration's dramatic change to the public charge 
definition, a wealth test to prevent low-income immigrants from 
entering the United States or becoming permanent residents. The 
majority found the rule had, quote, ``numerous unexplained 
serious flaws'' and barred its imposition. You, on the other 
hand, issued a 40-page dissent calling the rule reasonable. You 
would have allowed the Trump administration to limit low-income 
immigrants who might become a public charge. You called this 
rule reasonable despite the harm you knew it would inflict.
    For example, Illinois has approximately 3.1 million people 
enrolled in Medicaid, including 388,000 non-citizens and 
341,000 citizen children with an immigrant parent. It estimates 
over 140,000 individuals will disenroll from benefits and 
public services as a result of the public charge rule. 
Nationally, about 1 to 3 million people have disenrolled or 
gone without Medicaid coverage due to fear of consequences from 
the application of the rule to them.
    Dana, a community service provider in Colorado, can tell 
you about a single mother who didn't want to enroll her 
autistic, U.S. citizen child in necessary health and education 
services. Dana can also tell you about a pregnant woman in her 
third trimester who sacrificed prenatal care.
    The effect of the public charge rule has intensified as 
people forego testing and treatment for COVID-19, ensuring 
people will be sicker, more likely to die, and more likely to 
inadvertently spread the virus. Sarah, who helps provide legal 
assistance in New York, works to lessen the devastating impact 
of the rule. This includes working with one immigrant living in 
a shelter, seriously ill with COVID-19 symptoms, and unwilling 
to get tested or treated out of fear for her status.
    And while the Trump administration admitted--they admitted 
the rule's connection to a reduction in public benefit 
enrollment and food insecurity, housing scarcity, and increased 
costs for States and localities, it brushed off the impacts and 
refused to alter the rule.
    Similarly, in your dissent, you also acknowledged that 
people are disenrolling from health and other programs out of 
fear. You not only admitted to the disenrollments, you found it 
unsurprising. Disenrollments reportedly affect nearly one-
third--one-third of all low-income immigrant families with 
children.
    Judge Barrett, just to be clear, do you believe these 
disenroll-ments are policy consequences that are the job of 
Congress to fix, not the courts to consider?
    Judge Barrett. Senator Hirono, the dissent that I wrote in 
Cook County went through the public charge rule and the statute 
to explain that those who are currently receiving benefits were 
not affected by the public charge rule. It was a prospective 
screen. But I agree with----
    Senator Hirono. Actually--excuse me, Judge Barrett. I read 
your dissent, and I know you went through the laborious--you 
tried to show the people who would actually be impacted by the 
rule. But in your dissent you also acknowledge that there are a 
lot of people who are not impacted by this rule who will 
disenroll because of fear that the rule would apply to them.
    Judge Barrett. Yes. What I said was that----
    Senator Hirono. So my question to you is----
    Judge Barrett [continuing]. It was fear----
    Senator Hirono [continuing]. Whether those kinds of 
effects, which you foresaw--you even acknowledged it--if you 
would--if you think it is appropriate for the Court to consider 
those effects?
    Judge Barrett. So, Senator Hirono, as I was trying to 
answer before, yes, I said that there was fear and there was 
disenrollment, but that, in fact, the rule did not apply to 
anyone who was currently eligible for benefits.
    The question of disenrollment and the effects of the rule 
would be relevant at the stage of arbitrary and capricious 
review. I was just analyzing the first step, which was the 
interpretation of the statute. But I said that I wouldn't reach 
the question in that case because it hadn't been briefed. So 
what I said in my dissent was that it would be better to send 
that back to the district court for briefing on the question of 
whether the rule and the evidence that the agency had gathered 
was arbitrary and capricious, including its treatment of the 
costs for State and local governments, et cetera.
    Senator Hirono. Judge Barrett, you deemed the rule to be 
reasonable, so I take it you stand by your dissent in that 
case.
    Judge Barrett. I stand by my dissent, but, Senator Hirono, 
there is a difference between reasonable under the Chevron 
doctrine and arbitrary and capricious under the Administrative 
Procedure Act. So just what I am clarifying is I did not----
    Senator Hirono. But as you noted in your dissent, the APA 
was not even brought up, so that was not an issue.
    So, everyone seems to agree that this rule is having a 
chilling effect nationwide, among families, affecting access to 
healthcare, nutrition, food, housing, benefits that Congress 
meant to make available.
    So, I would say that from your response and the response 
you gave to Senator Feinstein about the distinction you make 
between policy and law, it seems to me that in this case you 
did not give credence, much credence to the effect of this 
rule, albeit the rule did not apply.
    Judge Barrett. It would have been the question at the 
arbitrary and capricious stage, because that is one of the 
relevant factors. But, you know, the laborious study that I did 
in the public charge case responded to the arguments the 
parties made and the complex statutes that Congress has passed 
in this area, including the welfare reform.
    Senator Hirono. Judge Barrett?
    Judge Barrett. Yes.
    Senator Hirono. I am sorry to, you know--I don't think you 
even mentioned arbitrary and capricious standard, so let me 
move on.
    Yesterday, Senator Graham asked you about how unlikely it 
would be to overturn Supreme Court precedent on a range of 
issues, and you said, quote, ``Judges can't 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, you know, their will on the world. You have to wait 
for cases and controversies.''
    But I don't think that is an entirely accurate picture, 
because certain Justices have been using their opinions to 
signal interest in addressing various issues, particularly 
those undermining workers' rights, civil rights, even inviting 
challenges to longstanding precedent.
    In fact, as Senator Whitehouse explained this morning, just 
2 years ago the Supreme Court overturned a 41-year-old 
precedent. Talk about reliance on a precedent. This precedent 
was called Abood, which protected public sector unions, and 
Justice Alito engaged in a 6-year campaign.
    [Poster is displayed.]
    Senator Hirono. And I just have this chart to show you that 
he was very persistent in signaling that he wanted to revisit 
Abood.
    So, in 2012, Justice Alito first signaled that he wanted 
conservative anti-union groups to challenge Abood in his 
decision in Knox v. SEIU. These groups brought case after case 
to meet the criteria Justice Alito laid out. Although they came 
close in 2016, his plan was thwarted by Justice Scalia's death, 
which left the Court stuck in a 4-4 decision tie, in 
Friedrichs. Justice Alito had to wait until Senator Mitch 
McConnell blocked Merrick Garland's nomination for nearly a 
year, so that President Trump could appoint Neil Gorsuch. 
Pretty much the minute Justice Gorsuch got on the Court, the 
Court finally overturned Abood in Janus.
    Now we are seeing that same kind of signaling to invite 
challenges to another precedent--I mentioned this yesterday--
Obergefell, which recognizes the right of same-sex couples to 
marry. And last week the Court denied review and over 1,000 
cases, but Justice Thomas with Justice Alito issued a sharply 
worded statement about one case that was denied review, Davis 
v. Ermold. And that case involved a former Kentucky clerk who 
refused to issue marriage licenses to same-sex couples after 
Obergefell.
    So, like Justice Alito in 2012, Justice Thomas, joined by 
Justice Alito, signaled an eagerness to roll back a Supreme 
Court precedent that they believe conflicted with their 
understanding of the Constitution. They criticized Obergefell 
for, quote, ``read[ing] a right to same-sex marriage into the 
Fourteenth Amendment, even though that right is found nowhere 
in the text,'' and called it, ``a problem that only [the Court] 
can fix.''
    Judge Barrett, you said judges ``have to wait for cases'' 
and can't say, ``I have an agenda,'' but here you have examples 
of Justices who are sending out signals: Bring these cases to 
us because we want to take a look at precedent.
    I just want to cite, too, one case where I think that you 
were also sending out a signal, and that is a circuit court 
case--well, two circuit court cases, one that you have been 
asked about, Kanter v. Barr, where you wrote a dissent arguing 
that certain people with felony convictions should have the 
right to have a gun, and you went out of your way to raise the 
issue of whether their right to vote--about their right to 
vote, and raising concerns that you view their right to vote to 
be more limited than their right to own a gun.
    In another example, in Price v. City of Chicago, in that 
case you joined a decision that upheld a so-called abortion 
clinic buffer zone law. As a circuit court judge, you had to 
apply the law under clear Supreme Court precedent, but the 
decision that you joined went even further. It signaled a 
strong disagreement with that precedent, the Supreme Court 
precedent, calling it, quote, ``incompatible'' with the First 
Amendment and ``impos[ing] serious burdens,'' and directed the 
plaintiffs to seek relief in the Supreme Court. You are going 
to be, if confirmed, on that Supreme Court.
    Earlier today, Senator Coons showed you a chart of more 
than 100 cases where Justice Ginsburg was in the majority and 
Justice Scalia was in the dissent, and the chart showed the 
many rights at stake, including longstanding precedent with 
your nomination, and that includes workers' rights, civil 
rights, healthcare, campaign finance limits, and environmental 
protections. My Republican colleagues are all aware of this and 
that is why they want you to be on the Supreme Court so badly.
    In 2016, after Justice Scalia died, you described him in a 
TV interview as, ``the staunchest conservative on the Court.'' 
Is that correct?
    Judge Barrett. I can imagine that I said that. As I am 
sitting here I can't recall my exact words.
    Senator Hirono. Well, I am quoting you, so----
    Judge Barrett. Okay.
    Senator Hirono [continuing]. Yes, you said that. And you 
also recognized that replacing ``the staunchest conservative on 
the Court'' with someone nominated by President Obama ``could 
dramatically flip the balance of power in the Court.'' That is 
a quote from you--``could dramatically flip the balance of 
power in the Court.''
    You are now in a position that you described 4 years ago, 
of dramatically flipping the power of the Court. So your 
nomination would actually be more dramatic, a more dramatic 
shift to law professors such as Professor Stephen Vladeck, that 
pointed out that with your confirmation the Court will be 
transformed into the most conservative court since the 1930s, 
with a much more aggressive conservative agenda.
    In accepting your nomination you described Justice Scalia 
as your mentor. That has been mentioned many times before. It 
appears that you may be even more to the right of Justice 
Scalia, whom you described as, ``the staunchest conservative.'' 
I think it is important to look at what kind of impact you 
would have had on more recent Supreme Court decisions.
    When Justice Ginsburg served on the Court, the Roberts 
Court issued numerous 5-to-4 partisan decisions. What was 
notable are the more recent 5-to-4 decisions after Justice 
Kennedy, who was often in the middle of the ideological 
spectrum, was replaced by a much more conservative Justice. The 
Court shifted rightward as Chief Justice Roberts' conservative 
views was now in the middle of the ideological spectrum of the 
Court.
    So, Judge Barrett, are you familiar with the recent 5-to-4 
decisions, where Chief Justice Roberts joined the four liberal 
Justices to form a majority?
    Judge Barrett. What decisions are you referring to?
    Senator Hirono. Are you familiar?
    Judge Barrett. I don't know what decisions you are 
referring to.
    Senator Hirono. There are a number of them. I would just 
touch on two, and I will describe them.
    [Poster is displayed.]
    Senator Hirono. So, these 5-to-4 cases touched on several 
issues that highlight what is at stake with your nomination. 
These issues include protections for DACA recipients, the 
integrity of the census, reproductive rights, digital privacy 
rights, right of criminal defendants, COVID-19 safety measures, 
protecting agency regulations, covers a wide range of 
protections, from veterans' benefits to clean air and water.
    I am just going to go to the DACA decision that I 
mentioned, in June 2020. Justice Ginsburg was part of a 5-to-4 
majority with Chief Justice Roberts, that blocked the Trump 
administration's efforts to end the DACA program. Replacing 
Justice Ginsburg with a conservative like Justice Scalia would 
have thrown the lives of 800,000 DACA recipients and their 
families into chaos. The DACA participants would be facing 
deportation. That includes the over 200,000 DACA recipients who 
are risking their lives on the front lines of the pandemic to 
protect the health and safety of us.
    And last year, Justice Ginsburg and Chief Justice Roberts 
issued a 5-to-4 decision that blocked the Trump 
administration's anti-immigrant policy of adding a citizenship 
question to the 2020 census, something very near and dear to 
President Trump. And replacing, in that case, Justice Ginsburg 
with someone like your mentor, Justice Scalia, would have 
resulted in excluding many immigrant families from the census. 
That would not only have decreased their representation in 
Congress, it would also have decreased their share in the 
distribution of $1.5 trillion in Federal resources.
    And yesterday we saw what the Court looks like without 
Justice Ginsburg on it. It allowed the Trump administration to 
end the census data collection early, despite the ongoing 
pandemic, despite the fact that they will not get an accurate 
census count, by ending the data collection early. So, of 
course, that would mean probably fewer Federal resources for 
communities where there is not that accurate count. That could 
also mean that Trump officials, instead of Census Bureau 
experts, may use the population numbers to determine 
representation in the House of Representatives and in State and 
local governments.
    And we already know that Trump is demanding that those 
numbers exclude undocumented immigrants, even if the census 
requires everyone to be counted, regardless of immigration 
status.
    So, President Trump has repeatedly accused Chief Justice 
Roberts of betraying conservatives in the Court's decisions on 
healthcare, DACA protections, and other rights. He has made it 
clear he has nominated you to do the job he thinks Chief 
Justice Roberts and Republicans failed to do--strike down the 
Affordable Care Act and roll back critical rights and 
protections.
    You have already been asked about the consequences of the 
Shelby County decision, and it was totally foreseeable that you 
would have a lot of States passing voter restriction 
suppression, basically laws. Do you believe, Judge Barrett, 
that voter suppression or discrimination in voting currently 
exists?
    Judge Barrett. Senator Hirono, we have the Voting Rights 
Act that offers protection, and Section 2 of the Voting Rights 
Act, which was not at issue in Shelby County, protects voters 
from any kind of measures that would discriminate on the basis 
of race. And so that gives protection----
    Senator Hirono. Do you think that the Justice Department is 
pursuing aggressively those sections of the law, because we 
know that over a dozen States passed what I would characterize 
as voter suppression laws. So that is obviously happening.
    Now in that case, Justice Thomas went even further, because 
the majority in Shelby County left the framework for allowing 
Congress to come back with formulas that would enable 
preclearance to occur. So Justice Thomas went even further. He 
said, get rid of the entire framework. Congress, you are 
totally out of the picture.
    So, this is the danger we are facing with your being put on 
the Court.
    One more thing. I have just one more question. Do you think 
that having three Justices who have worked on the Republican 
side in Bush v. Gore, you are one of those Justices, should you 
be confirmed--creates an appearance of conflict if an election 
case involving a President who nominated you comes before the 
Court? And I am basically out of time so I would like a yes-or-
no answer.
    Judge Barrett. Well, Senator Hirono, I answered that 
question before, and said any question of whether there was an 
appearance of partiality problem would be one for all Justices 
involved to consider under the recusal statute.
    Senator Hirono. So you think there might be a conflict and 
therefore you would have to go through that entire process.
    Judge Barrett. Senator, I think any time someone makes a 
motion to recuse, and indeed even when one is not made, a judge 
always has to consider that issue. So, I mean, you are asking 
me to make a decision about whether I think myself and two 
people who are not even yet my colleagues should recuse in that 
situation, and I am just saying that I----
    Senator Hirono. No, but actually my question was whether it 
poses an appearance of conflict, and I believe that the fact 
that you would even bring forth the recusal process says to me 
that voters might decide that there is an appearance of 
conflict.
    Thank you, Mr. Chairman.
    Chairman Graham. Thank you. Senator Ernst.
    Senator Ernst. Yes. Thank you, Judge Barrett, very much for 
being in front of us. Welcome to Day 3. It has been quite a 
day, and because we do have so many Members that have been busy 
talking over you and interrupting, and they have said so, 
themselves, ``pardon me for interrupting you,'' and telling me 
that their time is more important than hearing your answers. If 
you would like to take a few moments. If there is anything that 
you would like to further explain I would welcome that at this 
time.
    Judge Barrett. Thank you, Senator Ernst. I mean, I think 
the only thing I would want to clarify is, you know, insofar as 
Senator Hirono is suggesting, I think, that the work that some 
of the Justices may have done on Bush v. Gore is reason to 
recuse, that is certainly not what I meant. What I meant is 
that in every case judges have an obligation to consider the 
issues and they may conclude ``no.'' So what I meant to be 
saying was just not to take a position, so I just want to make 
that answer clear.
    Senator Ernst. Great. I appreciate that. Thank you for 
taking that time.
    And, Judge Barrett, obviously over the past number of weeks 
since you were nominated, and certainly since this hearing 
began, there has been a lot of discussion about the legacy of 
Ruth Bader Ginsburg, who was really a trailblazer. The 
Democrats seem to claim that you wouldn't be an adequate 
replacement for Justice Ginsburg because you do not march in 
lockstep with her judicial philosophy.
    The way I see it, you are both trailblazers, and you are 
both accomplished professors. You were both respected and 
revered and had strong endorsements, both from the left and the 
right. And you are both amazing working moms. You both served 
in private practice, and like you, she was a woman of strong 
religious faith. And you both have a very impressive track 
record on the judicial bench.
    So, asking women to march in lockstep with one philosophy 
is exactly the wrong kind of message we should be sending to 
women, and especially to young women. What I hear so often from 
the left, many of us on the right do, I would say probably 
Senator Blackburn hears this, many others hear this, that 
because we don't hold the same views that those on the left do, 
we shouldn't be serving in the roles that we are in. And that 
is what the left is projecting on you, is because you are not 
lockstep with what they want to see in their nominees, that you 
aren't worthy of serving on the Bench. I don't believe that. I 
don't believe that. And that shouldn't be a litmus test for the 
Supreme Court, and frankly, it shouldn't be the litmus test for 
any woman in any job--any woman in any job.
    Diversity of thought and an ability to pursue her dreams is 
exactly what the women trailblazers of the past fought for. If 
the suffragettes hadn't been willing to go against the men of 
their time, certainly none of the women sitting on this dais 
would have the opportunity to question you today.
    So, what would you say to those that claim you are not an 
adequate replacement for Ruth Bader Ginsburg, because you do 
not march in lockstep with her judicial philosophy?
    Judge Barrett. Well I think that judicial philosophy is an 
appropriate and an important topic for this Committee to 
explore at the hearing, and I think each of the Senators has a 
responsibility, when a nominee comes before you, to ask what 
the judicial philosophy is. And I think disagreeing with the 
judicial philosophy that I or any other nominee had is 
perfectly admissible grounds for voting ``no,'' because you may 
have a different vision for what a Justice or a judge is to do.
    And so I have no problem with that. I mean, I think that is 
how the Senators on this Committee have viewed their role. And 
so to, you know, on philosophical or, you know, jurisprudential 
grounds, I mean, I think that is part of, or, you know, a lot 
of what this hearing should be about.
    I think that there is room on the Court, and I don't think 
this just in terms of the women, but I think this for all 
members on the Court, there is room for different approaches to 
the Constitution, and I think those approaches shouldn't be 
broken down into partisan boxes, because judges are not 
partisan. You know, they do get appointed and confirmed by the 
political branches but judges don't have, you know, campaign 
platforms, and they no longer associate, as I have said a 
number of times through the hearing, judges stay out of 
politics. So their jurisprudential philosophies are not 
designed to yield particular results.
    So, I think there is room for different jurisprudential 
philosophies, that, by the way, even when they start and 
approach texts from different ways of thinking about it, 
sometimes yield the same result. You know, it is not 
necessarily the case that two Justices who, you know, one being 
a pragmatist and one being an originalist, won't end up at the 
same place. They just might get there a different way. Or even 
originalists--you know, I mentioned yesterday that, you know, 
there are many who identify themselves as progressive 
originalists. So originalists, you know, could start at the 
same place, and, you know, I suspect that, you know, they would 
disagree, end up in different places, and I have given examples 
of that.
    So, I think there is room, and it is good and healthy for 
different approaches to the Constitution and to have debates 
about that.
    Senator Ernst. Thank you. I really do appreciate that 
answer.
    So, as we have been sitting through these discussions I 
have heard a number of my colleagues bring up different 
descriptive words to describe you, and I would just like to 
review a few of those right now: respect, intellect, character, 
jurisprudence, clarity, demeanor, humility, dignity, 
independent, exceptional.
    I think that you are exactly what we should embrace, and as 
I look at future generations of men and women that might want 
to serve on our Supreme Court I hope that they would espouse 
those attributions as well.
    And while we have this national stage I would like you, 
Judge Barrett, to share some grains of wisdom for those future 
generations. What advice would you offer to those who are just 
now embarking on their legal career, and how should they define 
success and find motivation to, you know, kind of, quote, 
``leave their best on the field,'' if you will, at the end of 
each day?
    Judge Barrett. Well, I think, you know, I loved the 
practice of law. You know, some professors go to the academy 
because they don't enjoy practice that much. I actually really, 
really enjoyed practice. And then when I went to the academy I 
really enjoyed that too.
    I would say that, you know, especially when you are 
beginning your legal career, you know, often you are at an 
earlier stage in your life when you may have fewer other 
obligations or fewer family obligations and maybe more energy.
    So that it is--I guess I would just say, you know, live 
life to the fullest, seize all of the opportunities you have, 
and do your best, but at the same time never let work crowd out 
all of the other precious things in your life, like friends and 
family and faith and exercise. I had a law professor who told 
first-years who were very, very anxious and studying hard on 
the exams to make sure that you gave yourself time to go take a 
run or go work out.
    I mean, I think all of those things that make up our lives, 
apart from work, you know, can't be shoved aside. At the same 
time, however, you should seize opportunities and pursue them 
while keeping in mind your whole person.
    Senator Ernst. Yes, the whole person. Thank you.
    So, when we sat down, Judge Barrett, I told you a little 
bit about my daughter, Libby, and she is studying pre-law right 
now, and she sent me a text this morning as we were in this 
room. And she said, ``I have to fisk an article on Judge 
Barrett.'' So we had this discussion of ``fisking,'' a while 
back.
    Judge Barrett. I don't know what that is.
    Senator Ernst. So, I had to ask her what it was, and I 
actually googled it to make sure I had the right definition. 
But fisking, the process of shredding a written argument, line 
by line, parsing the meaning, and providing counterpoints. So, 
their instructor provided the class different articles about 
you, and they have to go through now and fisk the article.
    And she said--okay, so here is the whole text: ``I have to 
fisk an article on Judge Barrett, and honestly, what an amazing 
woman.''
    So, I just want to share that little bit of encouragement, 
that while there may be others on this Committee that disagree, 
I would share with you that there are thousands upon thousands 
of young women out there that see the role that you set, and I 
went through all of those descriptive words that my fellow 
Members have shared through the course of these hearings, but 
those thousands and thousands of young women that see you as 
someone they can aspire to be--and I know that she is in a very 
diverse group of friends. They are racially different, they are 
religiously different, but they are all young warriors, all of 
these young women. But they are very excited to have you in 
front of us. I would say that many of her friends are not 
Republicans. They would affiliate more with Democrats as well, 
but they do see you as someone they can aspire to be.
    So, thank you so much for setting such a great example, for 
women of all different thought processes. And what words of 
encouragement would you like to share with the young women like 
my daughter, Libby?
    Judge Barrett. I think I would say to be confident, to see 
what she wants, to have a plan. One thing I have often told my 
own daughters is, you know, that you shouldn't let life just 
happen to you or sweep you along. You should identify what your 
objectives are and identify the kind of person that you want to 
be, and then make deliberate decisions to make that happen. My 
dad used to tell us not to make a decision is to make a 
decision.
    Senator Ernst. Wise.
    Judge Barrett. So, I would say, make decisions, be 
confident, know what you want, and go get it.
    Senator Ernst. Mm-hmm. That is fantastic. And, you know, I 
have four tenets that I live by, or pillars of success, and 
those four pillars are leadership, service, prudent risk, and 
gratitude. And so, you know, I would like just to give you a 
couple minutes, you have already spoken to a few of those. You 
have talked about service and what it means to serve your 
Nation. And you actually went through prudent risk in deciding 
to subject your family, your friends, yourself to this process, 
but deciding it was for the greater good.
    I would like to give you just a moment to express some 
gratitude, as well, for those that have helped you get where 
you are today, and share maybe how they mentored you along the 
way.
    Judge Barrett. Sure. Well, I mean, I think, as for probably 
so many people, my parents were the ones who I have to express 
the most gratitude for, because, you know, they have--oh gosh, 
they encouraged me at every step of the way. They have 
encouraged me and supported me and loved me and shaped me and 
given the values that I have, and then as I have had my own 
family and my own children then they have helped me by 
supporting me with my children, and reinforcing what they 
taught me.
    My professors in law school. We heard the other day from 
former Dean O'Hara, who was gracious enough to introduce me on 
the panel. I had so many wonderful professors when I was in law 
school. I had so many wonderful colleagues once I joined the 
faculty. When I was in practice I had so many lawyers that I 
learned so much from. And then we have talked at great length 
about Judge Silberman and Justice Scalia, the judges for whom I 
worked.
    And so, you know, I guess they say it takes a village to 
raise a child. I think it takes a village to mentor anyone into 
who they become as an adult. And so I am very grateful for the 
whole village that I have had, that has brought me to this 
point.
    Senator Ernst. Wonderful. Thank you very much, Judge 
Barrett.
    Chairman Graham. Thank you. Senator Booker.
    Senator Booker. Mr. Chairman, thank you very much. Your 
Honor, hi.
    Judge Barrett. Hi, Senator.
    Senator Booker. How are you?
    Judge Barrett. I am good. You?
    Senator Booker. I am doing well. I am doing well. I am sure 
that part of that smile is the fact that I am the second-to-
last Democrat.
    [Laughter.]
    Senator Booker. I just want to jump right in because I 
actually found some of your responses to Senator Hirono are 
really compelling around the ``public charge'' issue and that 
you sent--you dissented in the case, and if I could read it.
    You wrote that, ``At bottom, the plaintiffs' objections 
reflect disagreement with this policy choice and even the 
statutory exclusion itself. Litigation is not the vehicle for 
resolving policy disputes. Because I think that DHS's 
definition is a rational interpretation of the statutory term, 
`public charge.' ''
    But you were saying to her, which I really found 
compelling, that you were still leaving the door open for it to 
be capricious. Was that the word you used?
    Judge Barrett. Yes. So, the standard of review under the 
Administrative Procedure Act would be arbitrary and capricious. 
So I said, at the conclusion of the dissent, because the 
majority reached both--I said at the conclusion of the dissent 
that I was not resolving that issue because it had not been 
briefed before us. But I just was not expressing an opinion, 
and I thought we needed a fuller record. So I did leave open 
the possibility that the rule would nonetheless be arbitrary 
and capricious.
    Senator Booker. Yes. I said to you on our phone 
conversation, trying to read all of your cases, it has been a 
Herculean task, as has probably yours preparing for this so 
quickly.
    And so, maybe I can just go back to asking just a simple 
question that I hope you will feel comfortable asking. It is 
just what I think is an obvious answer again.
    But do you think it is wrong to separate children from 
their parents to deter immigrants from coming to the United 
States?
    Judge Barrett. Well, Senator Booker, that has been a matter 
of policy debate and, you know, obviously, that is a matter of 
hot political debate in which I cannot express a view or be 
drawn into as a judge.
    Senator Booker. So, I respect that a lot. But I think the 
underlying question is actually not hotly debated, and just 
maybe I will answer it--ask it one more time.
    Do you think it is wrong to separate a child from their 
parent not for the safety of the child or parent but to send a 
message? As a human being, do you believe that that is wrong?
    Judge Barrett. Well, Senator, I think you are trying to 
engage me on the administration's border separation policies, 
and I cannot express a view on that. So I am not expressing 
assent or dissent with the morality of that position. I just 
cannot be drawn into a debate about the administration's 
immigration policy.
    Senator Booker. Right. And, of course, the question does 
have implications, but a very simple--as I said to you 
yesterday that we are debating things that, to me, are basic 
questions of human rights, human decency, and human dignity. I 
am sorry that we cannot have a simple affirmation of what I 
think most Americans would agree on.
    But maybe I can jump back to something we began yesterday. 
I asked you whether you were familiar with studies conducted by 
the U.S. Sentencing Commission. Do you remember?
    Judge Barrett. Yes. I said I was generally aware. Are you 
talking about when we talked about systemic or implicit 
biases?----
    Senator Booker. Yes.
    Judge Barrett [continuing]. Systemic racism?
    Senator Booker. Yes.
    Judge Barrett. I am generally aware that there have been 
studies done.
    Senator Booker. Right. And so the U.S. Sentencing 
Commission provides nonbinding Federal guidelines to Federal 
judges----
    Judge Barrett. Right.
    Senator Booker [continuing]. Which showed that some of the 
racial disparities in our criminal justice system they talk 
about that considerably, and my colleagues and I on both sides 
of the aisle as we worked on criminal justice reform discussed 
a lot of them.
    And some of those, as I discussed yesterday, were examples 
that Federal prosecutors are more likely to charge Black 
defendants who carry--with offenses that carry harsh mandatory 
minimum sentences, they are more likely to charge Black 
defendants than similarly situated white defendants, and Black 
defendants were subject to three-strikes laws sentencing 
enhancements at a significantly higher rate than white 
defendants, which on average actually added 10 years to their 
sentence, a significant surrender or seizing of liberty.
    And you said you were not familiar with that particular 
study, as you just reaffirmed, or the facts that they cite in 
this study showing that interracial bias is present in our 
system.
    And, you know, I think, in our discussion I think it came 
out that you know that these issues of bias in our criminal 
justice system are manifest, really, in many different aspects 
of the system, from police misconduct, unlawful use of force, 
to prosecutorial bias, sentencing disparities--these are wide 
and vast areas that have been shown to have such implicit 
racial bias evident in them. And this year, clearly, we have 
been grappling as a Nation with a lot of these issues and it is 
a part of our long-standing history.
    You cannot divorce the role of judges in our history over 
these some 200 years and how race has been a persistent part of 
the national narrative, grappling with deep issues of bigotry 
and bias, overt as well as the biases that exist.
    We know that many of the unjust deaths of unarmed African 
Americans at the hands of law enforcement has brought this even 
more into public--more into public concern.
    And so I just want to ask you and maybe give you more of a 
chance to discuss. I understand that you weren't aware of 
specific studies I cited, which are central to the important 
work of the U.S. Sentencing Commission, which advises Federal 
judges--or, provides recommendations to Federal judges.
    So, I just want to give you an opportunity today to share 
what studies, articles, books, law review articles, or 
commentary you have read regarding racial disparities present 
in our criminal justice system.
    Judge Barrett. Well, Senator, as you know, the sentencing 
guidelines do give judges guidance on imposing sentences and so 
I am familiar with the sentencing guidelines because they are 
something when we review sentences that, you know, we need to 
draw on and apply.
    In addition to the sentencing guidelines, the Sentencing 
Commission, as you say, does issue studies or, you know, 
sometimes we get things from the Federal Judicial Center that 
talk about it.
    It is not something--I am certainly aware of it. I think it 
is kind of an obvious point that there is still racism----
    Senator Booker. Right.
    Judge Barrett [continuing]. But, I have----
    Senator Booker [continuing]. But, and forgive me for 
interrupting, and I am especially concerned because of----
    Judge Barrett. No, that is fine.
    Senator Booker [continuing]. Joni Ernst, who has been 
teaching me about Iowa. I do not want to make her mad.
    [Laughter.]
    Senator Booker. But I was actually asking specifically any 
books you can name that you have read on this subject or law 
review articles, anything that you specifically read outside of 
the sentencing guidelines.
    Judge Barrett. Well, Senator Booker, I would say that what 
I have learned about it has mostly been in conversations with 
people and, you know, at Notre Dame, as at many other 
universities, it is a topic of conversation in classrooms but 
it is not something that I can say, yes, I have done research 
on this and read X, Y, and Z.
    Senator Booker. I respect that. You have answered the 
question.
    So, you know, one of the greatest drivers of disparity, as 
I have worked with partners of mine on both sides of the aisle, 
has been the so-called War on Drugs, which, really, is a war on 
Black and brown people because of the outrageous disparities.
    And there is no difference between Blacks and whites for 
using drugs or in dealing drugs in America, but Blacks are 
multiple times more likely to be arrested for them.
    It is why at Stanford, not that I am impugning my school--
--
    [Laughter.]
    Senator Booker [continuing]. Lots of drug use, very little 
arrests. But in low-income communities like the one I live in, 
equal drug use but much more arrests.
    One of the most tragic examples of this, again, partnership 
on both sides of the aisle, was about the crack-powder cocaine 
disparities, which impose such harsh unbalanced penalties for 
cocaine relative to powder cocaine, that someone caught with an 
amount of crack cocaine the size of a candy bar would get a 
roughly the same sentence as someone caught with a briefcase 
full of powder cocaine.
    This is a wildly unjust part. When the Sentencing 
Commission wrote an amendment to the address--to address some 
of the disparities and made it retroactive to 2008, you 
actually wrote a law review article in a well-known legal 
academic--not a law review article, excuse me. You wrote a blog 
post in a well-known legal academic that cited this decision 
and you questioned whether that was a wise call.
    Now, in fairness, as I reread it today, you raised the 
administrative hurdles in retroactively reducing sentences, 
which would provide relief to actually an estimated 20,000 
Americans who had their liberty, one of the most fundamental 
rights, taken away from them.
    But never in the blog article did you mention that this was 
unjust. There was no deference to how serious this is for the 
20,000 Americans, 98 percent of them who are Black and brown. 
You just questioned, why are we doing this?
    Could you tell me why?
    Judge Barrett. Sure.
    Senator Booker, I think what you are referring to is a 
short blog post on the law profs blog and it was not an in-
depth exploration of the crack cocaine disparity or anything 
like that.
    It was simply pointing out the administrative hurdles 
because my husband was an AUSA, a Federal prosecutor, at the 
time and that had been table talk at our house, just kind of 
the complexities of retroactively going back. So it was not a 
policy statement and it was not a statement meant to be just.
    I do not think it was probably more than a paragraph and it 
was simply identifying the administrative hurdles because they 
are, clearly--whenever you apply retroactive reform there are 
administrative hurdles going forward.
    Senator Booker. Well, you are a law professor who assigns 
lots of syllabus. To just a guy like me who played football----
    [Laughter.]
    Senator Booker [continuing]. This is a long article, a 
couple pages worth, and I am wondering----
    Judge Barrett. The blog profs post?
    Senator Booker. I have it here in a font that my old eyes 
cannot read without glasses.
    Judge Barrett. Okay. My old eyes cannot see it from here 
either. I do not have a memory of how long it was.
    Senator Booker. Okay. I guess I am just saying that you are 
not citing articles or research that you have read on this 
issue. Yet, you have written here about it, and to me that 
speaks--it makes we wonder and want to talk to you a little bit 
about your preparedness and priorities taking the highest 
office in the judicial world that deals with such long-standing 
issues of race and in a way that affects the totality of the 
lives of Americans in every aspect of their life, from their 
financial well-being to their rights to vote.
    And I would like to go through as quickly as I can in my 
remaining 10 minutes a little bit about the vastness of this 
problem and why I am very concerned that you haven't even cited 
anything that you have read that would speak to this, or the 
only writings I could find on it do not even talk to the 
injustice of it all.
    And so you had a conversation with Senator Klobuchar about 
voting, and I just want to know, have you ever waited 5 hours 
to vote?
    Judge Barrett. I have not.
    Senator Booker. Have you ever waited over an hour even?
    Judge Barrett. I have not.
    Senator Booker. Yes. Well, in Wisconsin, a State in your 
circuit, we saw the travesty during the primary earlier this 
year during a pandemic that many polling places were closed and 
lines were incredibly long.
    In Milwaukee, a city of more than half a million people, 
located in a county with 70 percent of that State's Black 
population, we literally saw out of the city's 180 polling 
places, only 5 were open, pushing people into hours-and-hours-
long wait.
    Now, comparatively, 66 polling places were open in the City 
of Madison, a predominantly white city half the size of 
Milwaukee, and the U.S. Supreme Court made this all worse with 
a ruling that restricted mail-in voting at the last minute 
during a pandemic where Black Americans are dying at twice the 
rate of white Americans.
    And let's be clear, this is part of a nationwide problem 
with racial disparities in voting. A recent study found that 
residents of entirely Black neighborhoods wait almost 30 
percent longer in lines to vote and they were 74 percent more 
likely to spend more than a half an hour at the polling place.
    Now, your dissent in Kanter v. Barr, you said something 
about virtue-based restrictions, which really raised my concern 
in that virtue-based restrictions have applied to civic rights 
like voting and jury service, not individual rights to possess 
a gun.
    This approach to the franchise sort of pulls up a lot of 
history where people used virtue-based restrictions in the past 
that has been very well documented in our history, ideas that 
you can disenfranchise people if they do not meet certain 
virtue tests and many of these tests I know you are aware of.
    But these are like, are you worthy enough if you cannot say 
the whole Declaration of Independence? These are tests that 
John Lewis used to talk about. Can you count the bubbles in a 
bar of soap? You are familiar with that, I am sure.
    Judge Barrett. Senator, I want to be very clear, and we 
went--I tried to clear this up yesterday. This concept of 
virtue, I think, especially for people who are watching this 
who do not know about the law, does not mean that I think that 
people's voting rights can be taken away because they are not 
good people or that I think literacy tests are okay or anything 
like that.
    It is a concept that was present in Heller. Kanter v. Barr 
was not about voting rights, and I very clearly have said 
voting is an individual and fundamental right that is critical 
to our democracy.
    Senator Booker. So poll taxes, you would say, 
unconstitutional?
    Judge Barrett. Senator, voting is a fundamental individual 
right that is critical to our democracy. The Fourteenth 
Amendment--the point I was making is that the Fourteenth 
Amendment does expressly contemplate that States might deprive 
felons of voting rights because it is in the text.
    Senator Booker. So you are jumping to felonies. I just 
asked you about poll taxes, and I have tried to point out to 
you with the picture of just one place, or African-American 
community as a whole, waiting so much longer than you and I 
might have ever waited in lines.
    I am trying to draw something here for you. So I just asked 
about poll taxes. Didn't get to felony disenfranchisement yet. 
Poll taxes, unconstitutional, yes?
    Judge Barrett. Okay, I was pointing out, with the felony 
disenfranchisement, the point I was making in Kanter v. Barr. I 
was not trying to anticipate your questions. I was just saying 
that that was the context in which I discussed it.
    I think Section 2 of the Voting Rights Act, which prohibits 
procedures and practices----
    Senator Booker. Right. Right. I think that----
    Judge Barrett [continuing]. Poll taxes fall. Yes.
    Senator Booker. Yes. Thank you very--thank you very much.
    You are jumping ahead and I spent so much time on my 
question.
    [Laughter.]
    Senator Booker. So, let's jump, though. Let's jump. Let's 
jump ahead to this and, obviously, the case in Florida that you 
are well aware of, I imagine, where we had significant felony 
disenfranchisement.
    I have read a lot about the history of that, going back to 
the post-Civil War period, the fall of Reconstruction, 
thousands of Blacks being lynched, massacres going on in our 
country from the Colfax Massacre to the Greenwood Massacre, and 
laws being passed systematically in places to try to make it 
harder for Blacks to vote, designing felony disenfranchisement 
laws and putting those aside of the Black Codes, easy to 
disenfranchise lots of African Americans. So, this is a lot of 
the historical origin here.
    Now, we see this coming to the fact that now we have places 
like Florida, and by the way, there are people--there are 
levels of disenfranchisement for African Americans upwards of, 
I think in America, 1 in every 17 Blacks are unable to vote 
because of felony disenfranchisement. I can see by your 
expression that is a surprising data point. I hope that you 
would look at that.
    And yet, in Florida, about 774,000 people have completed 
their felony sentences, are now being prevented from voting 
because they still owe fines and fees. These are Americans, 
disproportionately Black, are being subject to a modern-day 
tax.
    In other words, if I am wealthy enough I can pay that. If I 
am African American, disproportionately poor, I cannot do that. 
One in 5 Black people in Florida couldn't vote because of 
felony disenfranchisement.
    Now, this is well-documented history. I have gone through 
some of it. But as you are seeking this highest office in the 
land, I bring this full circle of our conversation because, 
again, another study by the American Bar Association, which I 
recommend to you, shows that a person with a felony commitment 
in America is subject to 40,000 collateral consequences.
    In other words, we now have in America the war on 
marijuana. It has affected--in 2017, there were more possession 
of marijuana arrests in America than all the violent crime 
arrests combined, overwhelmingly and disproportionately 
African-American people.
    I saw it used at Yale and Stanford. Not at Notre Dame. Just 
played them in football.
    [Laughter.]
    Senator Booker. But my point is, is you see that if a Black 
person is not more likely to use marijuana but they are more 
likely to be convicted of a felony for it at some 3 to 4 times 
the rate, I hope you can see that that means that they are 
going to be more likely to lose other liberties, other rights.
    It so deeply affects their lives, their voting life, their 
ability to raise their children when a parent has been put in a 
position where now, because of that felony conviction, we are 
doing things that two of the last three Presidents admitted to 
doing.
    They now cannot vote. They now cannot get jobs. They now 
cannot get many business licenses. This is such a deeply 
affecting system that is disproportionately harming one class 
of citizens based upon race.
    And so here we are in the midst of--and I return to the not 
normalcy of this moment in American history where you cannot 
turn on the TV and watch basketball without courageous athletes 
trying to talk to the heart of America to say: please listen, 
please listen. The system is endangering lives, taking away 
liberty, taking away your financial well-being, taking you away 
from your children.
    There are people, marched in all 50 States, 18 other 
countries, because African Americans, when they are jogging, 
sleeping in their home, are being killed.
    And we have a Nation now where we are doing a Supreme Court 
Justice hearing, the last days while an on-going election, to a 
President that cannot even condemn white supremacy, where he 
tells white supremacist groups stand by, where they are 
menacing and literally recruiting people to do so-called poll 
watching, which many people have sounded the alarm in African-
American communities, dredging up memories of the past of 
people intimidating people at polling places.
    People protesting in our country, all leading into an 
election where this issue and Roe v. Wade and people's 
healthcare all is going to be on the ballot. But yet, we are 
sitting here acting like this is normal.
    And I have a great deal of respect for my colleagues 
because some of my colleagues courageously have stepped up, 
calling out studies from and articles and writings from the 
Heritage Foundation, from the Cato Foundation, from AEI, who 
all spoke to, with data and facts, the pervasiveness of racial 
disparities.
    America, something is going on where The New York Times 
bestseller list, the Amazon bestseller list, had books, 
``Stamped From the Beginning,'' ``The Color of Law,'' ``Just 
Mercy,'' ``The New Jim Crow''--bestsellers all throughout 
America as people are seeking to know what the facts are.
    And so, I hope you understand my heart when I look at a 
Justice who it seems that, as the fix is in, is going to serve 
on the Supreme Court and hasn't taken steps to understand the 
pervasiveness, the facts, the truth about cases of race that 
are going to come before you in a system right now that so many 
people feel like is unjust, that those words written on the 
building of the Supreme Court, ``Equal Justice Under Law,'' 
doesn't apply to them because they see, as Bryan Stevenson 
says, that we still live in a country where you get better 
treatment in the justice system if you are rich and guilty than 
if you are poor and innocent.
    And so I appreciate the conversation that we have had and I 
wish we had more time. But there is a lot of fear, as I talked 
to you about yesterday.
    There is a great deal of concern about the way this is 
being done, and I just am deeply, deeply worried about the 
implications to our--the fabric of our Nation, as I said to you 
in our phone conversation, with the way this is being handled.
    And so I am very grateful with the decorum and candor with 
which you have answered my questions. I hope that you feel like 
I have treated you in the same way.
    Judge Barrett. Yes. Thank you, Senator Booker.
    Senator Booker. Thank you.
    Chairman Graham. Thank you, Senator. Senator Crapo.
    Senator Booker. Oh, I'm sorry. My staff is just telling me 
I should have--I should have said this----
    Chairman Graham. Without objection, whatever it is.
    Senator Booker. You and the Justice are both trying to jump 
ahead of----
    Chairman Graham. Whatever it is.
    [Laughter.]
    Senator Booker. I appreciate you, Mr. Senator, and the work 
that you and I----
    Chairman Graham. Thank you very much.
    Senator Booker [continuing]. Have done. So I would like to 
ask unanimous consent to enter into the record the following 
three letters into the record: a letter from the Leadership 
Conference on Civil and Human Rights opposing Justice Barrett's 
nomination to the Supreme Court; a letter from 83 young people 
organizations opposing the nomination of Judge Barrett to sit 
on the Supreme Court; a letter from LGBTQ advocacy groups 
opposing any nomination where reasonable doubts exist on her 
ability to administer fair and impartial justice for the LGBTQ 
people. Thank you.
    Chairman Graham. Thank you. Without objection.
    [The information appears as submissions for the record.]
    Chairman Graham. Senator Crapo.
    Senator Crapo. Thank you, Mr. Chairman. Judge Barrett, good 
to see you again.
    Judge Barrett. Likewise.
    Senator Crapo. Before I begin my comments and questions, I 
think there was at least an implication from what was just said 
that you would not be sensitive to the need for equal justice 
for all under the law for all peoples in America.
    Would you like to respond to that at all before I go ahead?
    Judge Barrett. I am fully committed to equal justice under 
the law for all persons. I am fully committed to enforcing all 
laws to prohibit racial discrimination.
    In my private life, I abhor racial discrimination and, 
obviously, for both personal reasons and professional reasons 
want to ensure that there is equal justice for all.
    And, you know, my--all of my children, I think, have made 
an escape. But if they'd watch this one day, I would want all 
of them to know, and especially Vivian and John Peter, that I 
unequivocally condemn racism and want to do everything that I 
can in my own capacity, personally and as a judge, to end it.
    Senator Crapo. Thank you. I appreciate you making that 
point. I find it just incredible that a mother of children of 
different races could be accused of not being sensitive nor 
willing to protect the rights of all under the Constitution. 
Before I go on with my questions, once again, it has happened 
both 2 days ago and yesterday and again today. There is a 
couple of things I think that need to be set straight in the 
record.
    First of all, once again today, it was said that we should 
not be holding these proceedings because we should be dealing 
with the pandemic.
    Well, first of all, the Senate can do more than one thing 
at one time. Second, as I indicated before, we have put over a 
$500 billion package of relief dealing with most every 
important and significant aspect of our need for COVID response 
on the floor. It has been filibustered by the other side.
    The President has made an even larger offer back. That has 
been flatly rejected. And we have had an announcement recently 
by the Leader of the Senate, Mitch McConnell, that we will vote 
again next week on the issue to see if there is some way we can 
get an agreement to move forward. But the argument that we 
should simply ignore this important nomination because of that 
holds no water.
    Second, another of the major points that this entire 
hearing was started out with on the first day was that people 
should be scared by these proceedings because they will lose 
healthcare coverage for their pre-existing conditions. That has 
been, again, run out here today time and time again, and I am 
not going to ask you go through that again but I am going to 
make a couple of comments about that.
    As I said earlier in these hearings, even back when we were 
debating Obamacare, there was no disagreement about covering 
pre-existing conditions, and in every proposal from our side 
since that time coverage for pre-existing conditions has been 
included. It is not something that there is an effort to or a 
willingness or a desire to eliminate in terms of protection, 
and it is not at risk in the Supreme Court case as you have, I 
think, very clearly described in your testimony, Judge Barrett.
    And finally, with regard to that, if those assurances and 
those facts do not make it clear, Senator Tillis has introduced 
legislation called the PROTECT Act, which will put into law, 
once again, protection for pre-existing conditions in our 
healthcare coverage, and every one of my colleagues on the 
other side of the aisle voted ``no'' to stop that from moving 
forward.
    It is there. The bill, the PROTECT Act, is in the Senate. 
We can vote on it if we can just get permission to proceed to 
it from our colleagues. So this notion that pre-existing 
conditions is somehow at jeopardy is simply rolling out yet 
again, you know, this campaign cycle another one of the 
arguments that doesn't hold water.
    Now, I do want to move to some questions for you, Judge 
Barrett, and, again, after it was extensively discussed 
yesterday and the day before, you have been attacked on the 
basis of concerns about your willingness to follow precedent in 
stare decisis.
    In fact, one of my colleagues, if I heard it right, said he 
thought that you may participate in issuing in a whole new era 
of judicial activism and overruling precedent of the courts 
and, basically, pushing an agenda that you won't admit to 
having.
    I know you answered this a lot yesterday. We are going to 
go through it again. One of the things that you were asked 
about extensively was this, I think, 2013 law review article 
where a sentence was plucked out of it that you feel was not 
correctly reflective of what you said and how you feel.
    Would you please--would you like to take an opportunity to 
clarify that for us?
    Judge Barrett. Sure. That article was responding--so, as I 
have said a couple times, the Supreme Court gives different 
precedential strength to constitutional cases than to statutory 
cases, and that article was responding to arguments that either 
stare decisis should be eliminated altogether or that it should 
be absolute.
    And, I was taking the Supreme Court doctrine as it exists, 
you know, where constitutional cases are not absolutely 
insulated from overruling, which is the position that every 
Supreme Court Justice of which--of whom I am aware has had, 
sometimes you do have to overrule cases. Otherwise, we do not 
have Brown v. Board of Education. And I was just identifying 
some of the virtues of that presumption.
    So, I was defending in that article the current Supreme 
Court doctrine of stare decisis and I very clearly said in that 
article that you cannot just impose a new vision with votes, 
that you have to take reliance interests and that always lack 
of certainty about how the stare decisis calculus runs, 
counsels in favor of keeping the status quo.
    Senator Crapo. Well, thank you. Now, I found it amazing 
that you would be accused of being a judicial activist because 
you are a textualist and an originalist, as I understand your 
testimony and your record and your writings, and I would like 
to just look at a few of your writings.
    You have described stare decisis as a fixture of the 
Federal judicial system. You have stated that the Supreme 
Court--that you recognize that the Supreme Court follows a 
presumption that precedent will stand and that the Court does 
not depart from that presumption unless the President is not 
only erroneous but unworkable. Correct?
    Judge Barrett. And not only erroneous and unworkable but 
also has to take into account reliance interests and those 
other factors as well.
    Senator Crapo. Yes, that was actually next on my list.
    Judge Barrett. Ahh. Okay. Sorry. I thought you meant 
unworkable is enough.
    [Laughter.]
    Senator Crapo. No. You anticipated that. And you have spent 
a lot of time, and I won't ask you to do it again, going 
through those requirements that are in place before a judge or 
a Justice would seek to become an activist in the sense of 
overturning existing precedent of the Court.
    And you have also said that partisan politics are not a 
good reason for overturning precedent. I assume that goes 
without saying. Correct?
    Let's look at--those were some of your writings and you 
have written much more, but let's look at some of the caselaw. 
You have had--you got a pretty significant record now in the 
Seventh Circuit.
    You have, as I see it, a pretty solid record there of 
following precedent. The first issue is in 2019 you had a 
discussion with Judge Amul Thapar.
    Judge Barrett. Oh, yes. Judge Amul Thapar.
    Senator Crapo. Okay. And I think you--could you please 
explain that conversation? It related, I think, to a case where 
you were clarifying that even though you disagreed in a 
previous circumstance relating to it that you would follow 
precedent. Or do you recall that conversation with him?
    Judge Barrett. I mean, I recall the conversation. We did it 
for a professor in the political science department. It was to 
primarily an undergrad audience, and we answered questions back 
and forth on a range of topics. I do not remember the 
particular----
    Senator Crapo. Okay. So this was not a case. It was a 
scenario you were asked about in that conversation.
    Judge Barrett. Oh, okay.
    Senator Crapo. And you made the clarification that in that 
scenario you would decide a case or a case consistent with the 
way the majority did and not with your own view if the 
precedent required it.
    Judge Barrett. Oh. So if I had dissented the first time 
around and lost, and then when it came back around----
    Senator Crapo. Yes. That is, apparently, what that was all 
about.
    Judge Barrett. Okay.
    Senator Crapo. So, let's talk about a couple cases. In 
Price v. the City of Chicago, you joined in affirming--in 
affirming opinion over a district court's dismissal of a suit 
by pro-life activists. Do you recall that case?
    Judge Barrett. I do.
    Senator Crapo. What role did precedent play there?
    Judge Barrett. Precedent controlled a case called Hill v. 
Colorado. The bubble zone ordinance at issue in Price was 
nearly identical to the one that the Court had upheld in Hill.
    Senator Crapo. And even though in this case you ruled 
against a pro-life interest in following precedent. Correct?
    Judge Barrett. Correct.
    Senator Crapo. In Lett v. the City of Chicago, you applied 
the Supreme Court's test for evaluating restrictions on a 
public employee's speech. Do you recall that case?
    Judge Barrett. Yes.
    Senator Crapo. And, again, you followed the precedent. In 
Chazen v. Marske, M-a-r-s-k-e, the Seventh Circuit held in 
light of the United States v. Mathis and a subsequent Seventh 
Circuit decision that a petitioner's prior convictions on a 
burglary no longer qualified as predicate offenses under a 
certain criminal act, again, following precedent of the Supreme 
Court and the Seventh Circuit.
    I am just picking out a few. You have got a very full 
record of these. In my view, I only found one case where you 
actually did not follow Seventh Circuit precedent and that was 
the case of Groves v. the United States. And I do not know if 
you recall that case but----
    Judge Barrett. I do.
    Senator Crapo [continuing]. Why didn't you follow Seventh 
Circuit precedent then?
    Judge Barrett. So, in that case, there was precedent that 
was old on point and the Supreme Court had issued a series of 
subsequent decisions which called our prior precedent into 
doubt.
    And so, the Seventh Circuit has a rule called Circuit Rule 
40(e) and when we conclude as a full court you circulate an 
opinion to the full court to say, I think our precedent should 
be overruled, in this case because it had fallen out of step 
with later developments in the Supreme Court.
    I circulated that precedent, or the opinion pursuant to 
40(e), and the full court agreed. So we overruled precedent.
    Senator Crapo. So the way I would summarize that is that 
you, the court, with your support, overruled the Seventh 
Circuit precedent because a Supreme Court precedent overruled 
that. Is that closely----
    Judge Barrett. Not directly overruled it. But the Supreme 
Court precedent undercut it.
    Senator Crapo. Was inconsistent with it. So you were 
following Supreme Court precedent to take that action?
    Judge Barrett. Yes.
    Senator Crapo. All right. Let's just look at your cases, 
and I am going to go through some statistics here, you know 
statistics sometimes get outdated or what have you, so if these 
are not accurate in your understanding, please tell me.
    But what I have before me tells me that you have authored 
79 majority opinions since arriving at the Seventh Circuit. Is 
that a correct number?
    Judge Barrett. I do not know. So I will take your word for 
it. I think--yes.
    Senator Crapo. All right. Well, that is what my information 
says.
    Judge Barrett. Okay.
    Senator Crapo. And it says that you have participated in 
the disposition of 922 appeals. Is that--does that sound 
approximately accurate?
    Judge Barrett. I think I have--the numbers that I have 
looked at recently suggested that I have participated in 600 
panels that were appellate but close to a thousand matters, 
which would include things like stay, certificates of 
appealability, stay applications, et cetera.
    Senator Crapo. All right. And my understanding is--and 
again, these statistics might vary a little bit because the 
numbers are a little different than you say but I think this is 
pretty accurate--that your majority opinions have been 
unanimous 95 percent of the time.
    In other words, almost always when you join a majority it 
is a unanimous conclusion of the court, or of the panel. Is 
that correct?
    Judge Barrett. That is my understanding. I have seen that 
statistic.
    Senator Crapo. Well, the statistics I see say that it is 95 
percent of the time that it is unanimous for the decisions of 
the--of the panel. According to CRS, Congressional Research 
Service, in all the cases you heard resulting in a reported 
opinion, you have only dissented 1.84 percent of the time. That 
ranks you sixth among the 11 active judges of the Seventh 
Circuit, which is right about in the middle.
    This report also says that your reported majority opinions 
drew dissents 6.41 percent of the time, which ranks you sixth 
among the 11 panelists, or of the 11 active judges, right about 
in the middle.
    And it says that the reported majority opinions drew 
separate writings or concurrences or dissents 7.69 percent of 
the time. That ranks you eighth among the 11 active judges of 
the Seventh Circuit, which means your opinions were some of the 
least likely to draw a dissent or a concurrence.
    The point of all these statistics is this is not the record 
of someone who is an activist in overturning precedent. This is 
the record of someone who follows precedent. And I just want to 
thank you for being that kind of a judge because that is one of 
the reasons I am so glad to support you as we move forward.
    Now, again, unfortunately, today, once again, and I thought 
we had this resolved yesterday, you have been challenged on 
what you knew about the President's positions on various issues 
and whether that influenced your positions.
    In fact, I think you--it was even implied that a law review 
article you wrote that was probably written before the 
President was even President was something that you were 
influenced in writing because you knew what the President 
thought.
    In any event, we are going to have to go back again and ask 
you these questions about--you have already said yesterday that 
the President didn't talk to you, his staff didn't talk to you, 
no one talked to you about Roe v. Wade, Obergefell, or 
California v. Texas, and you made no commitments on those three 
cases.
    Judge Barrett. Made no commitments on any of those cases or 
on any other case.
    Senator Crapo. That was my next question, because today it 
has been implied that you have basically just been following 
the President's statements, his tweets, even things that he may 
have felt or believed before he was President, and trying to 
make it--make your decisions consistent with that.
    So, once again, has the President or his team or anyone 
talked to you about any case or received a commitment from you 
about how you would rule on any case?
    Judge Barrett. No, Senator Crapo.
    Senator Crapo. All right. I hope that we can once again put 
that one to rest.
    And could you also, once again, restate is anybody above 
the law in the United States?
    Judge Barrett. No one is above the law in the United 
States.
    Senator Crapo. All right. Thank you very much.
    I told you yesterday before I quit that I was going to ask 
a few softballs.
    [Laughter.]
    Judge Barrett. Sometimes softballs turn out not to be 
softballs. Go ahead.
    [Laughter.]
    Senator Crapo. Well, I think this will. I just want to ask 
you--I am going to go--these are some of my hardballs. I am 
going to leave those because I have only got 3 minutes left.
    I just want to talk to you for a minute about academia. 
What led you to your decision to move out of practice into 
academia?
    Judge Barrett. Well, when I was in law school I thought I 
might like to teach some day because I really like teaching. I 
considered being a teacher, I mean, being a secondary school 
teacher was actually one of the things I thought about, too, in 
college.
    As I said in my speech up at the announcement of my 
nomination that my mom was a teacher and my dad was a lawyer, 
and so combined that might explain how I wound up being a law 
professor. So, I loved the idea of teaching students. I liked 
the idea of communicating with clarity, you know, complicated 
doctrines to them to help them.
    I have very much enjoyed, you know, teaching the 2,000 
students that I have taught and mentoring them as young adults 
just embarking on their careers and, in many cases, for those 
who have not had much time between undergrad and law school and 
even, kind of, launching their lives, it has been a really 
rewarding experience.
    Senator Crapo. Well, you have, obviously, been very 
influential in that because so many of your students and your 
colleagues speak so highly of you.
    You actually also anticipated two of my other questions 
about it, so I only have one more to ask and that is what was 
your favorite class to teach?
    Judge Barrett. Oh, it is hard to pick a favorite. It is 
like asking what is your favorite child--who is your favorite 
child.
    I really enjoyed teaching so many classes. I mean, 
constitutional law and Federal courts overlapped directly with 
the things I was writing about. I taught evidence, mostly just 
because they needed somebody to do it, and what is funny about 
that is, you know, I do not--I didn't do scholarship--I didn't 
write scholarship about evidence. It wasn't part of my 
scholarly interests and I was doing it as service.
    It is called a service class, just because you need 
someone. Everyone wants to take it. It turned out to be really 
fun to teach just because it was fun to be able to engage 
students in interactive exercises and I could use movie clips 
to do it, and it turned out to be a very fun class to teach, 
even though it didn't overlap with the things I was writing 
about.
    Senator Crapo. Well, thank you very much, Judge Barrett, 
and it is an honor for me to be able to support you for this 
nomination.
    Judge Barrett. Thank you, Senator.
    Chairman Graham. Thank you. Senator Harris, are you----
    Senator Harris. I am here. Can you see me and hear me?
    Chairman Graham. Yes, ma'am. The floor is yours.
    Senator Harris. Thank you, Mr. Chairman. Judge Barrett, 
earlier today you described the Voting Rights Act as, quote, 
``a triumph of the civil rights movement.'' But, as you know, 
the Voting Rights Act was not an inevitable triumph.
    So, I think it is important for us to acknowledge some of 
its history. This year, our Nation has mourned the loss of a 
great American hero, Congressman John Lewis. He was one of our 
country's greatest leaders because he inspired us to fight for 
a more perfect Union.
    Every year, John Lewis would invite a bunch of us Members 
of Congress, faith leaders, others, to join him in Selma, 
Alabama, for a walk across the Edmund Pettus Bridge, and it was 
there that he would remind everyone of America's history and 
the history of the fact that for generations Black Americans 
were denied their constitutional right to vote.
    He also reminded us of the brutality that so many Americans 
faced when fighting for the voting rights of Black people and 
all people.
    And history reminds us that some States, as a condition of 
voting, required Black Americans to answer impossible questions 
like, take a look at that jar of jellybeans, and if you are 
going to vote, you need to tell us how many jellybeans are in 
the jar.
    There were questions asked of folks in order for them to 
vote they would have to tell the official how many bubbles are 
in a bar of soap. Impossible questions, obviously.
    Some States required Black people who had been systemically 
and systematically denied access to equal educational 
opportunities, to answer questions like, how often is the 
Federal census taken? Or, when is Inauguration Day?
    And when one of these malicious questions was asked, they 
were challenged, as you can imagine, and many were struck down. 
But when that happened, those States and municipalities would 
just put up new restrictions and new obstacles for folks to 
vote.
    In other cases, Black Americans were beaten when they tried 
to vote or register to vote, including Congressman Lewis and 
others who, memorably, shed blood on the Edmund Pettus Bridge.
    That is why after so much pressure and the marching and the 
peaceful protests from civil rights activists that in 1965 
Congress finally passed the Voting Rights Act to end 
discriminatory voting practices.
    The Voting Rights Act, as you know, required States and 
counties who had a history--this is very important--who had a 
history of denying Black Americans and other minorities the 
right to vote to get approval from the Federal Government 
before they changed their voting laws, and for almost 50 years 
the Voting Rights Act did what Congress intended.
    It allowed the Federal Government to monitor and guard 
against racial discrimination in States with a long history of 
voters suppression. But as we all know, in 2013 in Shelby v. 
Holder, a county in Alabama sued to strike down Section 5 of 
the Voting Rights Act that required Alabama to seek approval 
from the Federal Government before a State could change its 
voting laws and, of course, Section 5 required that of a number 
of States that had a documented history of voter suppression.
    Now, Judge Barrett, I know many of my colleagues have asked 
you about this case. But I think it is important we revisit it. 
By a 5-4 vote, the Court gutted the Voting Rights Act and ended 
the requirement that States and localities with a history of 
discrimination get Federal approval before changing their 
voting laws. What the majority of the Supreme Court Justices 
failed to understand is, that the success in combating voter 
suppression directly was a function of our ability to enforce 
Section 5 of the Voting Rights Act.
    So, the success was due to the brilliance of Section 5 of 
the Voting Rights Act, which gave us enforcement capabilities 
and monitoring capabilities. As has been mentioned, just 2 
months after the Court gutted the Voting Rights Act, North 
Carolina passed laws that made it so much more difficult for 
Black Americans to vote that a Federal court of appeals 
mentioned that it, quote, ``targeted African Americans with 
almost surgical precision.''
    Texas also has a long history of racial discrimination in 
voting and was, therefore, once also covered by the Voting 
Rights Act.
    But after Section 5 was gutted in Shelby, Texas quickly 
returned to some of its discriminatory voting practices. Of the 
more than 1,600 polling places closed after the Court's 
decision, at least 750 were in Texas. Texas also restricted 
interpretation assistance for English-limited voters.
    And this year, the governor of Texas issued an order that 
limited the number of drop boxes for completed mail-in ballots 
to just one per county.
    Before the order, Harris County, Texas, which includes 
Houston, and had 11 ballot drop-off locations in a county of 
over 4 million residents and a county that covers about 2,000 
square miles, many people would say that it is just common 
sense that going from 11 drop boxes to what it did, which is to 
reduce it to 1 single drop box, has made it more difficult for 
people to vote.
    The Supreme Court has long recognized that our right to 
vote is fundamental because it preserves and protects all other 
rights. No right is more precious in our democracy, and a 
nominee to the Supreme Court must understand the effect and the 
fact of ongoing efforts to discriminate against Black 
Americans, Latino Americans, Native Americans, students, and 
other communities of color.
    Since the Supreme Court's decision in Shelby, at least 23 
States have passed restrictive voting laws and have attempted 
to also close polling places, stop early voting, and take 
people's names off the voter rolls that should not have been 
removed.
    So, Judge Barrett, in Shelby County, Chief Justice Roberts 
wrote, quote, ``Voting discrimination still exists. No one 
doubts that.'' And my question to you, do you agree with 
Justice Roberts' statement?
    Judge Barrett. Senator Harris, I want to just make sure 
that I understand--that my understanding of what remains of the 
Voting Rights Act, what happened in Shelby County, is 
consistent with what you are describing.
    The preclearance requirement, as I understand Shelby 
County, remains in place and what the Supreme Court held 
unconstitutional was the coverage formula.
    So some States, which, in 1965, had a history of 
discrimination, had to get preclearance whenever they changed 
anything having to do with their voting procedures and others 
States didn't, and I think Shelby County said that Congress can 
still pass a new coverage formula now, articulating the 
criteria for jurisdictions that are discriminating and 
requiring preclearance.
    Senator Harris. Judge Barrett, my question, however, is, do 
you agree with Chief Justice Roberts who said, ``Voting 
discrimination still exists. No one doubts that'' ? Do you 
agree with that statement?
    Judge Barrett. Senator Harris, I will not comment on what 
any Justice said in opinion, whether an opinion is right or 
wrong, or endorse that proposition.
    Senator Harris. Well, I am asking you, do--so, do you call 
it a proposition or a fact? Are you saying you could not agree 
with a fact?
    Judge Barrett. Senator, I am not going to make a comment. I 
am not going to say that I endorse either the majority or the 
dissent in the case of Shelby County.
    Senator Harris. Well, I just want to understand. Are you 
saying that you will--you refuse to dispute a known fact or 
that you refuse to agree with a known fact?
    Judge Barrett. Senator, I am not exactly sure what you are 
getting at with asking me to endorse the fact or whether any 
particular practice constitutes voter discrimination. I am very 
happy to say that I think racial discrimination still exists in 
the United States and I think we have seen evidence of that 
this summer.
    But as to engaging----
    Senator Harris. Do you think that voting discrimination 
exists based on race----
    Judge Barrett. Senator----
    Senator Harris [continuing]. In America in any form?
    Judge Barrett. Senator Harris, there have been cases. We 
have talked in this hearing about the Wisconsin case that went 
up to the Court involving voting.
    I think anything, any opinion that I would express, and I 
do not mean to signal that I disagree with the statement 
either.
    What I mean to say is I am not going to express an opinion 
because these are very charged issues. They have been litigated 
in the courts, and so I will not engage on that question.
    Senator Harris. During his confirmation hearing in 2005, 
Chief Justice Roberts was asked about the constitutionality of 
Section 2, which I think you were referring to earlier, of the 
Voting Rights Act. He testified, quote, ``I have no basis for 
viewing Section 2 as constitutionally suspect, and I don't.''
    Judge Barrett, do you agree that Section 2 of the Voting 
Rights Act is constitutional?
    Judge Barrett. I think that Chief Justice Roberts' 
statement--I have no basis for viewing it as constitutionally 
suspect--would be the same as mine. I am not aware of any 
constitutional law existing that would create a question about 
it.
    Senator Harris. Thank you.
    As Senator Hirono mentioned yesterday in a 2018 case before 
the Supreme Court, a group of workers were denied overtime pay 
and joined together to file a lawsuit against their employer. 
The corporation argued that workers didn't have a right to go 
to court as a group and could only raise disputes in 
arbitration individually.
    Unlike a court proceeding, arbitration is private. The 
process is hidden from the public and, generally, cannot be 
reviewed for fairness by a court, and in many cases people are 
forced to agree to arbitration if they want to get the job. In 
2018, because of a forced arbitration clause, the workers could 
not go to a court to fight for overtime and instead were forced 
to fight for overtime pay behind closed doors in a private 
arbitration.
    Justice Ginsburg, in dissent, noted that the workers faced, 
quote, ``a Hobson's choice: accept arbitration on their 
employer's terms or give up their jobs.'' She went on to 
explain that, quote, ``Employees must have the capacity to act 
collectively in order to match their employer's clout in 
setting terms and conditions of employment.''
    She urged the Court to consider the, quote, ``extreme 
imbalance,'' unquote, of power in our Nation's workplaces and 
avoid further undermining Congress' passage of labor laws to 
protect workers and place them on equal footing.
    Do you recognize Justice Ginsburg's point that there is, 
quote, ``extreme imbalance'' of power between large 
corporations and individual workers?
    Judge Barrett. Senator Harris, I am going to give you the 
same answer that I gave you with respect to the sentence that 
you quoted me from Chief Justice Roberts' opinion in Shelby 
County, that I just--I am not going to engage in critiquing or 
embracing portions of opinions, especially opinions that have 
been recently decided and are contentious, from the Court.
    Senator Harris. And, you know, you have been on the bench a 
short time, but I am going to just point out that I do believe, 
and commentators have noted, a pattern that you have had of 
ruling against workers and in favor of corporations.
    For example, in Burlaka v. Contract Transport Services, you 
ruled against long-haul truckers seeking overtime pay for 
additional work.
    In Wallace v. Grubhub Holdings, you ruled against delivery 
drivers seeking overtime pay, forcing them out of court and 
into private arbitration.
    In Harris v. YRC Worldwide, you ruled against four Black 
truck drivers who alleged their employer assigned them less 
desirable routes when compared to their colleagues
    In Smith v. Illinois Department of Transportation, you 
ruled against a Black worker who was called a racial slur by 
his supervisor.
    And in fact, if you go on--according to an independent 
analysis of your decisions, Judge, it appears you have sided 
with business interests over workers and consumers in about 85 
percent of your business-related cases.
    Moving on. Climate change, as many have mentioned, is an 
existential threat and its effects are all around us. In 
California, we have had 5 of the 6 largest wildfires in the 
State's history. Thirty-one people have been killed by 
wildfires in California since August alone, including at least 
2 firefighters and a helicopter pilot.
    Across the State, over 9,000 homes and structures have been 
burned and Californians have been forced to breathe dangerous 
smoke, all of this, obviously, during a pandemic which attacks 
the respiratory system.
    But rather than work to combat climate change, the Trump 
administration has rolled back environmental protections and 
removed the word--the term, ``climate change,'' from Government 
agency websites including the EPA.
    In 2007, in Massachusetts v. EPA, the Supreme Court decided 
by a 5-to-4 ruling that States could sue the EPA for its 
failure to combat climate change during the Bush 
administration. Justice Ginsburg was the crucial fifth vote in 
that case.
    Following that ruling, the EPA responded by unequivocally 
finding that climate change and its impacts are a danger to the 
public health and welfare.
    Justice Barrett, yesterday you said that, quote, you ``have 
read things about climate change but you would not say you had 
firm views on it,'' unquote.
    In response to Senator Blumenthal today, you said, quote, 
you ``are not competent to opine on what causes global 
warming,'' and that you, quote, ``do not think your views on 
global warming or climate change are relevant to the work you 
do as a judge.''
    I certainly do believe your views are relevant and I am 
very concerned about your statements. Since the Massachusetts 
v. EPA case, scientific consensus has grown even more and 
stronger that climate change is real and it is caused by 
manmade greenhouse gas pollution and it poses significant 
threats to human life.
    If a case that comes before you would require you to 
consider scientific evidence, my question is will you defer to 
scientists and those with expertise in the relevant issues 
before rendering a judgment?
    Judge Barrett. If a case comes before me involving 
environmental regulation, I will certainly apply all applicable 
law, deferring when the law requires me to, and as I am sure 
you know, Senator Harris, the Administrative Procedure Act does 
require courts to defer to agency fact-finding and to agency 
regulations when they are supported by substantial evidence, 
and----
    Senator Harris. Yes.
    Judge Barrett. So, yes, I would apply that law and defer 
when the law requires me to defer.
    Senator Harris. And do you accept that COVID-19 is 
infectious?
    Judge Barrett. I think yes, I do accept that COVID-19 is 
infectious, that that is something of which I feel like, you 
know, we could say you take judicial notice of. It is an 
obvious fact, yes.
    Senator Harris. Do you accept that smoking causes cancer?
    Judge Barrett. I am not sure exactly where you are going 
with this, but, you know, the notice that smoking causes----
    Senator Harris. It is just a question. The question is what 
it is. You can answer it if you believe it. Yes or no.
    Judge Barrett. Senator Harris, yes. Every package of 
cigarettes warns that smoking causes cancer.
    Senator Harris. And do you believe that climate change is 
happening and it is threatening the air we breathe and the 
water we drink?
    Judge Barrett. Senator, again, I was wondering where you 
were going with that. You have asked me a series of questions 
like--that are completely uncontroversial like whether COVID-19 
is infectious, whether smoking causes cancer, and then trying 
to analogize that to eliciting an opinion on me that is a very 
contentious matter--opinion from me that is on a very 
contentious matter of public debate, and I will not do that.
    I will not express a view on a matter of public policy, 
especially when that is politically controversial because that 
is inconsistent with the judicial rule, as I have explained.
    Senator Harris. Okay. Thank you, Judge Barrett, and you 
have made your point clear that you believe it is a debatable 
point.
    Mr. Chairman, these proceedings, I believe, lack legitimacy 
in the eyes of the people of our country. Americans are right 
now suffering from a deadly pandemic and we are also suffering 
a historic economic crisis.
    The Senate should be working day and night to provide 
economic relief to families and not rushing a Supreme Court 
confirmation. We are also in the middle of an election. More 
than 12 million Americans have already voted. The American 
people want whomever wins this election to fill this seat. My 
Republican colleagues know that, I believe.
    This hearing has done nothing to alleviate the concerns 
raised about why this nominee was chosen and why this is being 
rushed when the American people deserve to be heard.
    So, again, I would say let us not pretend that we do not 
know what consequences rushing this confirmation will have for 
the American people. There are countless issues at stake and, 
to be candid, people are very, very scared.
    They are scared that allowing President Trump to jam this 
confirmation through would roll back rights for generations, 
scared about what it means to the future of voting rights, 
about what it means for civil rights, for workers' rights, for 
consumer rights, for climate change, and the right to a safe 
and legal abortion, not to mention access to healthcare 
regardless of income or pre-existing conditions.
    They are also deeply concerned about what this means for 
our Nation's continued pursuit of the timeless principle, equal 
justice under law. And I share those concerns.
    Sadly, my Senate Republican colleagues are doing, I 
believe, great harm with this illegitimate process and if they 
are successful it has the potential to do great damage. And I 
believe that damage is to the people of our country and to the 
United States Supreme Court.
    Thank you, Mr. Chairman.
    Chairman Graham. Thank you, Senator Harris. Senator 
Kennedy.
    Senator Kennedy. Thank you, Mr. Chairman. Judge, let us try 
to answer some of Senator Harris' accusations. Are you a 
racist?
    Judge Barrett. I am not a racist, Senator Kennedy.
    Senator Kennedy. You are sure?
    Judge Barrett. I am positive.
    Senator Kennedy. Do you support, in all cases, corporations 
over working people?
    Judge Barrett. I do not. And I think if you look at my 
record, you will see cases in which I have decided in favor of 
plaintiffs, not corporations.
    Senator Kennedy. Are you against clean air, bright water, 
and environmental justice?
    Judge Barrett. I am not against any of those things. Those 
are policies that the Congress has pursued in many statutes, 
and I think we all reap the benefits of when those statutes 
work.
    Senator Kennedy. Do you support science?
    Judge Barrett. I do, and I help my children with their 
homework when they are trying to learn it.
    Senator Kennedy. You are sure of that?
    Judge Barrett. I am sure I believe in science, and I 
support science.
    Senator Kennedy. Do you support children and prosperity?
    Judge Barrett. I support children, seven of my own, and 
then support others. You know, I obviously think children are 
our future, support children. And yes, I support prosperity.
    Senator Kennedy. Do you hate little warm puppies?
    [Laughter.]
    Judge Barrett. I do not hate little warm puppies.
    Senator Kennedy. Okay. I just wanted to get all that clear. 
See, we did that in about 2 minutes.
    Judge Barrett. I think that my daughter Juliet, who is 10, 
would want me to put in a plug right now to say I do not hate 
chinchillas. Because we do not have a puppy in the Barrett 
house, but we do have a very fluffy chinchilla. And so I do not 
hate chinchillas either.
    Senator Kennedy. Duly noted. Look, Senator Harris is my 
friend, and I get it. She is running for Vice President. But I 
want to address these voting rights allegations.
    Senator Harris has implied that some States are pristine 
and other States are not in terms of discriminating against 
people on the basis of gender or race or--or ethnicity. We 
disagree. She thinks America is systemically racist. I do not. 
I think our history is the best evidence of that.
    I do not think we are a racist country. I think we are a 
country that has some racists in it, but, you know, I am very 
proud of the fact that our country has gone from in 150 years, 
which in the grand scheme of life, death, and the resurrection, 
is the blink of an eye. We have gone from institutionalized 
slavery to an African-American President.
    We have passed--I will miss some of these dates. But we 
passed civil rights laws in, I think, 1869, 1871, 1957, 1961, 
1965, 1990, 1991. I am pretty proud of that.
    But let me get back to my point. My good friend Senator 
Harris--and she is my friend. I have enormous amount of respect 
for Kamala. She suggested that some States are wicked and other 
States are pristine. And I would gently remind her that 
California, a State I love--I mean, I love visiting California. 
You have got to keep moving because they will tax you if you 
stand still, but I love California.
    But California has a deep history of discrimination against 
Asian Americans. California has a deep history of 
discrimination against Hispanics. And I am not saying this is 
true, but there have been serious allegations made against 
Senator Harris that as attorney general of the wonderful State 
of California, that she participated in racial disparities in 
prosecution.
    Now, let me jump subjects again. We have talked about 
precedent and stare decisis and why it is important.
    Judge Barrett. Mm-hmm.
    Senator Kennedy. We need to have stability.
    Judge Barrett. Mm-hmm.
    Senator Kennedy. People need to be able to rely on the law.
    Judge Barrett. Mm-hmm.
    Senator Kennedy. But you are not suggesting that the United 
States Supreme Court never has, nor should it ever, reverse 
precedent if they think they got it wrong. Are you?
    Judge Barrett. No. The Supreme Court has always 
acknowledged that there are circumstances in which it must be 
able to reverse precedent.
    Senator Kennedy. And you mentioned reliance interests, how 
many Americans have relied on a particular decision by the 
United States Supreme Court, as a factor in deciding whether to 
overturn that precedent?
    Judge Barrett. Yes.
    Senator Kennedy. Reliance interests are not dispositive, 
are they?
    Judge Barrett. Reliance interests are not dispositive. For 
example, in Brown v. the Board of Education, I mean, clearly 
the South had an entire system of segregated schooling in the 
South----
    Senator Kennedy. Yes.
    Judge Barrett [continuing]. And so they had relied on 
Plessy v. Ferguson. But reliance interests were not dispositive 
there because you----
    Senator Kennedy. There were a lot of reliance interests on 
Plessy v. Ferguson. Weren't there?
    Judge Barrett. There were. So, I think Brown illustrates 
that reliance interests are not dispositive. You have to look 
at all the factors in the stare decisis test.
    Senator Kennedy. Okay. Yesterday, another friend, Senator 
Booker--Rhodes Scholar, hell of a tight end, too, Stanford. He 
asked you if you, I wrote it down, empathize with people 
struggling to pay for healthcare. And of course, you 
appropriately said yes. I mean, we all do.
    Under our Madisonian system of separation of powers and 
checks and balances, which branch of Government is supposed to 
address the struggle that many Americans have to afford 
healthcare, Congress or the United States Supreme Court?
    Judge Barrett. Congress, Senator Kennedy.
    Senator Kennedy. Let's talk just a second about State 
constitutions. I know you know this, but we forget sometimes 
that State constitutions preceded our Federal Constitution. Am 
I right?
    Judge Barrett. Mm-hmm.
    Senator Kennedy. And in fact, there are parts of our 
Federal Constitution that were copied from State constitutions.
    Judge Barrett. Mm-hmm.
    Senator Kennedy. Having said that, there are a lot of 
provisions that are similar. For example, we know we have a 
Fourth Amendment in the Federal Constitution. Many States have 
their own version of the Fourth Amendment.
    Judge Barrett. Yes.
    Senator Kennedy. What happens when a State supreme court 
construes its Fourth Amendment differently than the United 
States Supreme Court construes the Federal Fourth Amendment?
    Judge Barrett. So the State is free to construe its Fourth 
Amendment differently as a matter of State law, but of course, 
the Federal Constitution also applies to the States through the 
Supremacy Clause. So a State is not free to violate the Fourth 
Amendment.
    But one thing States often do, which I am sure you know 
because of your interest in State constitutions--and we talked 
about the Louisiana constitution yesterday--is that many States 
interpret their versions of the Fourth Amendment or other 
provisions to be even more protective of rights than as the 
United States Constitution.
    Senator Kennedy. So the Federal Constitution sets a floor.
    Judge Barrett. But not a ceiling.
    Senator Kennedy. So if Louisiana wants to construe its 
Fourth Amendment as not having any exceptions to the warrant 
requirement, we could do that.
    Judge Barrett. States are free--they are free to fashion 
their policies as they want within the limits of the Federal 
Constitution. And so the contours of the Federal Fourth 
Amendment would not themselves prohibit Louisiana from doing 
that.
    Senator Kennedy. Yes. Why does that make sense to you?
    Judge Barrett. Well, that is federalism. So, my friend 
Judge Jeff Sutton on the Sixth Circuit has written a book 
called, ``51 Imperfect Solutions,'' and his point is that, you 
know, we have all these laboratories of democracy, as they are 
called, the States, and it is federalism. Different States have 
different preferences. Their electorates can make different 
decisions in Louisiana than in Indiana, than in California.
    And so, if some States want to have greater protections, 
and many do, we allow those differences to flourish within the 
limits of the common denominator that we have----
    Senator Kennedy. Mm-hmm.
    Judge Barrett [continuing]. Which is the United States 
Constitution.
    Senator Kennedy. And that is just respect for the States.
    Judge Barrett. That is.
    Senator Kennedy. The Federal Constitution has a State 
action requirement. Am I right?
    Judge Barrett. It does.
    Senator Kennedy. Would a State be free to not have a State 
action requirement?
    Judge Barrett. I am not aware of any principle that would 
prevent a State from in a statute or a constitutional 
provision. States can be the master of their own constitutions. 
Right?
    Senator Kennedy. And what do I mean when I am talking about 
State action?
    Judge Barrett. State action requirement. So the only 
constitutional provision, I think, in our Constitution that 
applies directly to individuals is the Thirteenth Amendment, 
which prohibits slavery.
    The Fourteenth Amendment, you know, which is the context in 
which the State action requirement has been explored in Supreme 
Court caselaw in the civil rights cases, means that the equal 
protection guarantee or even all the Bill of Rights that are 
incorporated through it, like the First Amendment, only apply 
to the government.
    So, when I am teaching this to my common law students, what 
I tell them is that I can tell my kids at the dinner table the 
First Amendment does not apply here. They will often say, like, 
``Hey, what about my freedom of speech?'' And I will say, ``You 
do not have any because in my house, it is the law of Amy.''
    Still, but public universities, you know, are different 
than private universities in that regard because the First 
Amendment applies to government-run institutions, but not to 
private universities.
    Senator Kennedy. Yes. I do not know what the law is right 
now, but I think there was a case, maybe it has been overruled. 
But the California Supreme Court, based on its constitutional 
history, has ruled that the First Amendment in the California 
constitution or the First Amendment version has no State action 
requirement. It does not just protect you against government. 
It protects you against everybody. It is just----
    Judge Barrett. I did not know that.
    Senator Kennedy. Yes, it is some interesting litigation.
    I read somewhere that you are an admirer of Kate Chopin.
    Judge Barrett. Oh, yes.
    Senator Kennedy. Who is--tell us who she was and why you 
admire her.
    Judge Barrett. Well, she--when I was in college, back in my 
English major days----
    Senator Kennedy. She is a Louisiana wri--was a Louisiana 
writer.
    Judge Barrett. That is right. And she wrote a book focused 
on Louisiana and a woman who comes to Louisiana from--now I 
cannot remember what part of the South she was from--and talked 
about her becoming accustomed to New Orleans and its particular 
culture. And I very much appreciated that because it, you know, 
especially, you know, as a New Orleanian, I thought it was an 
insightful look into what the history of New Orleans is like.
    And my family--you know, my great-great-grandparents came 
to New Orleans from France, and my family has been in New 
Orleans for generations. And so its history is important to me.
    Senator Kennedy. Ms. Chopin had a very feminist point of 
view, too, did she not?
    Judge Barrett. She did. So, ``The Awakening''----
    Senator Kennedy. Sort of before her time, yes.
    Judge Barrett. Mm-hmm. Mm-hmm, she did.
    Senator Kennedy. Two more. Tell me what the legal authority 
is, if you know, for a universal injunction. We got about 600 
Federal judges, Federal district courts. I could be off by a 
few. And they have--they not only have limited jurisdiction, 
but they have limited venue, if you will. They hear cases in a 
certain geographical area.
    How can one Federal district court judge in a limited venue 
enjoin a congressional statute or a Presidential Executive 
order for the entire United States, continental and otherwise?
    Judge Barrett. Well, that is a disputed issue of law that's 
in litigation in the Court. It has been on the Court's docket, 
the authority of district courts to issue nationwide 
injunctions. So, that would, you know, take me down the path of 
opining on a case that could, you know, wind up in litigation 
in front of me.
    Senator Kennedy. Okay. I got one last question.
    Judge Barrett. I hope it is an easy one.
    Senator Kennedy. It is. It is a sincere question. I am 
generally curious, who does the laundry in your house?
    [Laughter.]
    Judge Barrett. We increasingly have been trying to get our 
children to take responsibility for their own, but those 
efforts are not always successful. So we run a lot of loads of 
laundry.
    Senator Kennedy. Well, you are very impressive, Judge.
    Judge Barrett. Thank you, Senator.
    Senator Kennedy. I yield back, Mr. Chairman.
    Chairman Graham. Thank you very much, Senator Kennedy. 
Senator Blackburn.
    Senator Blackburn. Thank you, Mr. Chairman.
    And thank you for your endurance today. We appreciate it.
    I have a couple things for the record: a letter in support 
of Judge Barrett from the Republican National Lawyers 
Association, and then, also, the op-ed that was in The 
Washington Post, September 25th. It is by John Garvey, and it 
is, ``I Taught and Worked With Amy Coney Barrett. Here's What 
People Get Wrong About Her Faith.'' It is--he is president of 
the Catholic University of America, and it is in support of her 
nomination and confirmation.
    Chairman Graham. Without objection.
    [The information appears as submissions for the record.]
    Chairman Graham. And while I have it on my mind, thank you 
for reminding me, I have a letter from Reverend Franklin Graham 
supporting your nomination. And Jack Goldsmith, a professor of 
law from Harvard. I will introduce those, too, thank you.
    [The information appears as submissions for the record.]
    Senator Durbin. Mr. Chairman?
    Chairman Graham. Yes, sir.
    Senator Durbin. I ask to include in the record letters in 
opposition to the nomination from 50 organizations on 
immigration; A Better Balance and 88 other organizations that 
support rights of working families; 320 law professors 
specializing in health law, disability law, and constitutional 
law; and the Alliance for Justice, Lawyers for Good Government 
and over 6,200 attorneys.
    Chairman Graham. Without objection.
    [The information appears as submissions for the record.]
    Chairman Graham. Senator Blackburn.
    Senator Blackburn. Thank you, Mr. Chairman.
    Just a couple of things, again, tying up some loose ends 
before we let you get on your way.
    Senator Harris mentioned, as did others, that they would 
like to see us working on COVID relief. Again, I want to remind 
my colleagues they had the opportunity to vote on this a couple 
of weeks back. And if Senator Harris chooses to come in next 
week, she is going to have the opportunity to vote on COVID 
relief once again.
    She mentioned the California fires, and in relation to her 
comments to you about climate change, I would just remind my 
friend Senator Harris, that it is pointed out regularly that 
these fires occur every year. Some years are more difficult 
than others, and we just grieve the loss of property and life 
and livelihood for Californians, but we also note that 
California State officials have not been successful in getting 
their forest management plans under control. So we would note 
those things.
    Judge Barrett, I think it is no secret that the Democrats 
are trying to drum up a lot of hysteria about you to spread 
some fear and misinformation. And much of this is centered on 
Americans' healthcare, and here is the reality.
    Our friends across the dais here are wanting to do a 
single-payer, Government-run system. And they fear that a 
constitutional Court would block them from taking control of 
healthcare, from taking private health insurance away from 153 
million Americans. And they have centered this entire attack 
talking about the ACA, or Obamacare.
    And as I said yesterday, there are 8.3 million Americans in 
the Obamacare program. And in addition to the 153 million that 
have private health insurance, there are 57 million senior 
Americans that have been paying into Medicare all their working 
life, and they would lose that with a Government-run, single-
payer system.
    And I feel like that our friends across the dais have 
really tried to paint you as a monster with an agenda. And I 
have appreciated that you have said repeatedly, ``I have no 
agenda.'' And we know that, as I said, they have got their 
goals. They have their goal on healthcare, for socialized 
medicine, for ending the doctor-patient relationship, for 
making a bureaucrat-patient relationship.
    They have even said pre-existing condition coverage would 
go away, which is not true. That is widely supported by 
Republicans and Democrats. It actually originated with 
Democrats in the Senate and Republicans in the House.
    And they have also said older children would lose their 
healthcare. Not true. Again, that has bipartisan support.
    But I think what has struck me the most through some of 
these comments is that they say that you have to have diversity 
in order to have equality. But what I have watched them do 
through this entire process of questions and talking with you 
and opening statements is they have chosen intellectual 
isolation as opposed to having diversity bring a different 
perspective. And to me, that is really very sad.
    And to my friends across the aisle, I would say that the 
American people are no more afraid of the ideas of a Catholic 
woman than they are of the words splattered on a protest poster 
being held by a liberal woman. They do not fear that.
    I have also found a few things said about you to be 
unnecessarily condescending, and I regret that. I know that 
they--that some on the left think they can verbally pound you 
into submission to a more leftist agenda. I found it very 
curious that one of our colleagues even said that they fear you 
would usher in conservative activism on the courts.
    But one of the things that those of us on our side of the 
aisle continue to say, we do not want activist judges from 
either the left or the right. So my colleagues should be 
comforted in the fact we do not want judicial activism, period, 
end of sentence. We want jurists that are going to call balls 
and strikes, that are constitutionalists, textualists, 
originalists. That is important to us.
    And some of my colleagues on the other side of the dais 
have seemed to be quite amazed that you could balance career 
and family, and I would think that they would choose to praise 
you for finding a way to do the work that you feel called to do 
and balancing it all. Maybe they should be curious about how 
you meet the demands of family and work and friends and church 
and all the different balls. I know when my kids were small, I 
felt like I was juggling balls coming and going. And now that I 
have grandkids, I feel about that same way sometimes.
    And they have been almost--unfortunately have this tone of 
condescension around that there would be a woman from the 
political right who would try to have it all. And as I tell my 
daughter, regularly, you can have it all, just not at the same 
time. Things have to get spaced out, and you take these tasks 
as they come.
    And we see that what they have done is to continue to 
project their thoughts, their desires, their concerns onto the 
American people, using words about ``malicious,'' ``fear,'' 
``terrified,'' ``scared.'' The American people are not afraid 
of you.
    They wanted to lecture you. I found it condescending the 
way they accused you of not understanding recusal rules. I 
appreciated that you were quite able to defend yourself on that 
point.
    When my team and I were talking about this, I told them 
yesterday I sat here--now Senator Kennedy talked to you about a 
Louisiana author. I thought about a Nashville songwriter.
    [Laughter.]
    Senator Blackburn. In Nashville, we say everything begins 
with a song, begins and ends with a song.
    Now, one of my old neighbors, the late, great Eddy Arnold, 
had this song that was a great song. It was a love song, but 
the title of that is very applicable here. The song was called, 
``You Don't Know Me.'' And in one of our visits one day, I 
asked him about the story behind the song, which many times is 
more interesting than the lyrics themselves.
    And he said the story behind the song, what he had shared 
with the songwriter who wrote it, was that many times we miss 
the richness of a relationship because we do not stop and take 
the time to get to know someone. And that, I think, is what my 
colleagues did to you. They made this all about the Affordable 
Care Act. They made it all about issues that they wanted to 
talk about because we are 20 days away from an election.
    And what they did was in the projection that they did of 
projecting their thoughts onto the American people, they 
projected stereotypes onto you. Those stereotypes are what they 
think about us as women on the political right. And they enjoy 
being able to mock and to ridicule and to diminish and to 
demean. To them, it is political sport. It is the politics of 
personal destruction, and it is wrong. It is wrong.
    I think one of the things that really gets them is this. 
You do not fit into their elitist format. You are a girl from 
the South, from New Orleans. You went to school at Rhodes in 
Memphis. I do not know if my colleagues have ever been to 
Memphis or ever been to Rhodes, which is a wonderful school, 
but you do not fit into their Harvard-Ivy League type group. 
You are not a part of the clique or the club.
    So, you left Rhodes. You go to Notre Dame, and people look 
at you and say, ``exceptional.'' She is doing great work. We 
are going to help her to get to a different spot in her career. 
And they did. They opened doors. You came to DC, you clerked.
    But, Judge, you messed up. You went back to Notre Dame, and 
you chose to teach and to have a family and to have friends and 
a sense of community, right there in the middle of the 
heartland. And see, now they do not want to admit you got where 
you got. You earned it.
    Nobody, nobody gave you a shortcut. You earned it. And that 
is why we are so honored to support you.
    Thank you.
    Chairman Graham. I would like to associate myself with 
those comments, Senator Blackburn.
    I am going to tell you about where I grew up. I do not know 
why. It just seems to be a good way to end this thing.
    [Laughter.]
    Chairman Graham. It has got nothing to do with anything. 
But I grew up in a small town called Central, South Carolina, 
the first in my family to go to college.
    My dad owned a bar, a poolroom, and a liquor store. And my 
mom ran the bar, and my dad ran the liquor store. And when I 
was old enough, I ran the poolroom. This is why I think I am a 
good Senator. It is good training for this job.
    But I remember, speaking about country music, we had a 
Piccolo. Do you know what a Piccolo is, Judge?
    Judge Barrett. I do not know what a Piccolo is.
    Chairman Graham. Well, you are too young.
    [Laughter.]
    Chairman Graham. A Piccolo is something you put money in to 
listen to the song, and the one song that I will remember to my 
dying day, talk about country music titles, was, ``My Wife Ran 
Off With My Best Friend, and I Miss Him.''
    [Laughter.]
    Chairman Graham. So, this is a wonderful country, and I 
just want to say to my Democratic colleagues, I have lost sleep 
over this hearing. I did not know how it would go. There is a 
lot of tension--2020 is the year that is unbelievable, in every 
fashion.
    You have asked challenging questions of the nominee. You 
have asked probing questions of the nominee. And at times, you 
have done some of the things that Senator Blackburn talked 
about, in my view. But thank you, on behalf of the country, for 
allowing us to get through this hearing in a fashion that I 
think is befitting of the Senate.
    To my Republican colleagues, thank you for being patient. 
But this is not about us, it is about you, Judge. I will end 
where we began. The hope was not to really change anybody's 
mind. I do not think that is possible in today's environment, 
and I say that accepting 2020 for what it is. But I am hoping 
that people who did not know you, know you better. I am hoping 
that young women who are conservative see hope in you, what 
Senator Blackburn said.
    I hope people who have listened find your disposition 
reassuring. You are one of the most amazing human beings I have 
ever met in my life, and that is saying a lot because I have 
got to meet a lot of incredible people as a Senator and 
otherwise serving in the Air Force.
    Your knowledge of the law is just unbelievable, deep and 
wide. Your judicial philosophy I think is very mainstream. You 
are exactly who a Republican would be looking at picking. Not 
so much a Democrat. And that is not a slam on you, because 
elections have consequences.
    And to my good friend Senator Whitehouse, I want to reform 
the system. It needs to be reformed. But nobody had to spend 15 
cents to tell me that you are qualified. I figured that out on 
my own.
    I followed your career from afar, and this is the first 
time I have really had a chance to interact with you. And all I 
can say is that I have seen a lot of people come and go. We 
have had some of the most talented people in this country sit 
where you are sitting, and you have acquitted yourself well.
    You have much to be proud of. Your children have much to be 
proud of in their mother. Your husband has much to be proud of 
in his wife. You have much to be proud of in terms of how you 
have served your country thus far, and with Amy Barrett, the 
best is yet to come.
    So, in another time and another place, you would get 
everybody's vote. It is not about you. It is about us. Somehow 
we have lost our way. There is no use blaming one side versus 
the other. It always seems to be that our people get treated 
pretty harshly.
    I voted for Sotomayor and Kagan because I saw in them the 
qualities that a Democratic President would be looking for and 
the character, the integrity that the public would appreciate 
and would be fitting of the job. Elections do have 
consequences.
    This vacancy came about through a tragic demise of one of 
the greatest women of any time. She did things that no other 
woman was able to do and through her actions paved the way for 
women to achieve their goals. She has a different philosophy 
than you do judicially. That is okay.
    I hope it is okay that you can be pro-life and adhere to 
your faith and still be considered by your fellow citizens 
worthy of this job.
    I think you have met every test that any reasonable person 
could impose in terms of qualifications.
    I think you meet every test in terms of disposition and 
character that the public could hope for in terms of having 
somebody sit at the table at the Supreme Court.
    You will be confirmed, God willing. You will have my full 
support. I see in you someone who is not only highly qualified 
to be on the Court in every way possible, but somebody that has 
broken new ground in a positive way for the country.
    So what we will be doing now is go in closed session. The 
FBI evaluation will be presented to the Committee. That is 
standard practice for every nominee. We will meet again here 
just in--where is the room? Dirksen G50. You will be with us. 
We do this for every nominee going back to Chairman Biden, and 
it is over.
    The hearing part is over. You can have two glasses of wine 
tonight if you would like.
    [Laughter.]
    Senator Blumenthal. Mr. Chairman?
    Chairman Graham. Yes.
    Senator Blumenthal. I will defer to Senator Durbin if he 
wants to go first.
    Chairman Graham. Yes, I would just like to finish my 
thought, then we will defer to Senator Durbin.
    The hearing part is over. You acquitted yourself well. But 
the journey you are about to take is going to be challenging, 
it is going to be rewarding, and may God bless you in this 
endeavor.
    Senator Durbin.
    Senator Durbin. Mr. Chairman, on behalf of the Democratic 
side--I will not speak for Senator Blumenthal, he can certainly 
add his own comments--thank you for your fairness in this 
hearing. I heard no objection, nor will I, about the way you 
have conducted this.
    You have given everyone a chance to express themselves. You 
have been a little flexible on the time, and I thank you for 
that. It is a hallmark of what you have brought to this 
Committee, and I hope it continues through the remainder of 
this negotiation and deliberation.
    To Judge Barrett, thank you for being here. This is an 
ordeal, and I have seen it from this side many, many times. And 
I want to thank your husband and your family for joining you in 
this effort. I am sure they will take away many memories, and 
some will be good, of this experience, which you can talk about 
for years to come.
    I do want to say one thing that was mentioned yesterday 
that always strikes me, and that is the impact of this 
experience on your children. I heard you or someone say that it 
was painful, there were painful moments for some of the kids. I 
am sorry.
    I hope that I was not the cause or we were not the cause, 
but I will just tell you they are innocent victims, and they 
should not have to go through this. But each of us in public 
life can tell you back a story or two as well of our own family 
experiences. We put our names on the ballot. We are the 
targets. And when they go after my family, it just infuriates 
me. Just drives me crazy.
    It happens, and sadly, it happens too often. But thank you 
for being here.
    Judge Barrett. Thank you for your kindness, Senator Durbin.
    Chairman Graham. Senator Blumenthal.
    Senator Blumenthal. Thanks, Mr. Chairman.
    I want to join in Senator Durbin's remarks thanking you for 
being here. I also have additional remarks. I am assuming, Mr. 
Chairman, that at the beginning of the session tomorrow, we 
will be permitted opening statements.
    Chairman Graham. I am glad----
    Senator Blumenthal. And rather than taking time now----
    Chairman Graham. Yes.
    Senator Blumenthal [continuing]. I will have comments on 
the process and on comments that have been made by others, 
President Trump, by some of our colleagues here today, and over 
the course of recent days. But I do thank you, Mr. Chairman, in 
giving us that opportunity first thing tomorrow before the 
markup begins.
    Chairman Graham. So, yes, thank you very much.
    We are going to meet tomorrow at 9 o'clock. We will have an 
executive business meeting. We are going to hold the nomination 
over, consistent with the practice of the Committee, and we 
will talk among ourselves tomorrow and give everybody a chance 
to express themselves.
    We have got a panel, four and four--four for, four against. 
We will hear from them. We will hear from the ABA.
    And we will meet tomorrow at 9 o'clock, and we will gavel 
this part of the process to conclusion. We will meet in Dirksen 
G50.
    God bless you, Judge Barrett. Thank you very much.
    Judge Barrett. Thank you, Chairman.
    [Whereupon, at 5:47 p.m., the Committee was recessed.]
    [Additional material submitted for the record for Day 3 
follows Day 4 of the hearing.]


 
                          CONTINUATION OF THE


 
                      CONFIRMATION HEARING ON THE


 
                  NOMINATION OF HON. AMY CONEY BARRETT


 
                   TO BE AN ASSOCIATE JUSTICE OF THE


 
                   SUPREME COURT OF THE UNITED STATES

                              ----------                              


                       THURSDAY, OCTOBER 15, 2020

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 11:11 a.m., in 
Room 216, Hart Senate Office Building, Hon. Lindsey O. Graham, 
Chairman of the Committee, presiding.
    Present: Senators Graham [presiding], Grassley, Cornyn, 
Lee, Cruz, Sasse, Hawley, Tillis, Ernst, Crapo, Kennedy, 
Blackburn, Feinstein, Leahy, Durbin, Whitehouse, Klobuchar, 
Coons, Blumenthal, Hirono, and Booker.

          OPENING STATEMENT OF HON. LINDSEY O. GRAHAM,
        A U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA

    Chairman Graham. The hearing will come to order. Senator 
Feinstein will be back in a second. We are not going to start 
until she does. I appreciate our witnesses' patience. The 
Committee did its business and I appreciate the way in which it 
was conducted, the respect and the sincerity, and we will now 
be moving forward.
    I will wait until Senator Feinstein gets here, but I will 
do the introducing. Our panel includes members of the American 
Bar Association who are responsible for rating judicial 
nominations. We have three. Mr. Randall Noel, a partner at 
Butler Snow, Memphis, Tennessee, and Ms. Pamela Roberts, 
partner, Bowman and Brooke, Columbia, South Carolina. Welcome. 
And I will allow Senator Grassley, now, to introduce Mr. Brown.

         OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
             A U.S. SENATOR FROM THE STATE OF IOWA

    Senator Grassley. Yes. Mr. Brown, as far as I know, will 
probably not be testifying, but he is counselor to these people 
that are. But I want to recognize him for a more important 
reason. First of all, a little bit of background. David Brown 
is here in his capacity as vice chair of the American Bar 
Association Standing Committee on the Federal Judiciary. He is 
a partner in a very prestigious Des Moines law firm, Hansen, 
McClintock, & Riley. I am pleased that he is able to be here 
today, and I welcome him and all the other witnesses to the 
Committee.
    But in regard to his hard work, I think, as I know him 
personally and I have heard him say, everything that these 
members that are on the Standing Committee on the Federal 
Judiciary that review judges, both district, circuit court, and 
Supreme Court, the time that they have to put in to do it. So I 
know how diligent he is. I don't know whether I could tell you 
exactly whether he has been doing it for 20 or 30 years, but at 
least half the time that I have been on this Committee, which 
would be 20 years out of 40 years, I have known him to work 
very diligently at this. And if he is an example of the lawyers 
of this country that serve that same capacity, interviewing 
candidates that are nominated by the President of the United 
States, they all work very, very hard.
    So, I want to thank David Brown for his hard work, and as 
he counsels these people today. They probably don't need any 
counsel, but he is there to help them if they need it. And I 
welcome him and everything else.
    And since we are getting started 2 hours late at this, and 
I had made other plans, Mr. Chairman, I want to have permission 
to put my questions in the record.
    Chairman Graham. Permission granted and I appreciate your 
patience. You are invaluable to the Committee today.
    Senator Grassley. Thank you.
    Chairman Graham. Senator Coons, while we are waiting on 
Senator Feinstein, do you think it would be appropriate for 
them to start, or do you want to wait? Is that okay? Let's just 
wait a minute. Is that okay?
    Okay. I have been told it is okay.
    Mr. Noel?

                 STATEMENT OF RANDALL D. NOEL,
              BUTLER SNOW LLP, MEMPHIS, TENNESSEE

    Mr. Noel. Thank you, Chairman Graham, and thank you Senator 
Feinstein for the opportunity to be here today. It is an honor 
and a privilege.
    Chairman Graham. You need to--the red button. Can somebody 
help Mr. Noel?
    Mr. Noel. Are we on now?
    Chairman Graham. We are on now.
    Mr. Noel. Thank you, Chairman Graham and Ranking Member 
Feinstein, for the opportunity to be here today on behalf of 
the American Bar Association's Standing Committee on the 
Federal Judiciary. It is an honor to be here to explain to you 
our process and our evaluation of Judge Barrett.
    We gave Judge Barrett a rating of ``well qualified,'' as 
you know, our highest rating. For 67 years, the Standing 
Committee has conducted thorough, nonpartisan, non-ideological, 
impartial peer reviews of all nominees to the Federal courts. 
We assess the nominee's integrity, their professional 
competence, and their judicial temperament.
    The Standing Committee does not propose or recommend 
nominees. Our sole mission is to evaluate the professional 
qualifications of a nominee to serve on the court. And we do 
that through a comprehensive, thorough, fair, and independent 
peer review, the only one they will get, that entails reaching 
out to hundreds of lawyers and judges, Bar Association leaders, 
deans and academicians, and others across the country who have 
personal, first-hand knowledge of the nominee's professional 
endeavors that touch upon the nominee's integrity, professional 
competence, and judicial demeanor. And the information that is 
given to us by these individuals is done under strict 
confidence, to ensure that the comments that we receive are 
candid, open, and honest.
    I am joined by Pamela Roberts of South Carolina, who was 
the lead evaluator for this nominee, and we were assisted by 
our Standing Committee members, a team of stellar lawyers from 
across the country, who were hand-picked and whose practices 
are in the litigation arena, and who are deeply committed to 
the work of a strong judiciary.
    As you know, David Brown joins us here today, and I can 
tell you that all of these people work diligently to do what we 
always aspire to do, and that is to provide a fair and 
independent rating within the timeframe that is established by 
the Senate Judiciary Committee.
    To be a nominee to the Supreme Court one must possess 
exceptional professional qualifications, and as such, our 
investigation of a nominee to the Supreme Court is much more 
extensive than that for other Federal courts. In addition to 
the usual approach of having a lead evaluator conduct and 
report on the nominee, every member of the committee, from his 
or her own circuit, conducts a separate evaluation, which is 
given to us.
    And second, while the committee members review the writings 
and opinions of the nominee, we engage academic reading groups. 
Here we had two academic reading groups, distinguished 
professors from the law schools of the University of 
Mississippi and Belmont University, and a third professional 
reading group that included Supreme Court practitioners and 
former clerks, among others. There were 34 members of these 
reading groups. They read the opinions and the writings of the 
nominee and they independently evaluated factors such as the 
Judge's analytical abilities, clarity of writing, knowledge of 
the law, application of the law to the facts, harmonizing a 
body of law, reasoning, scholarship, and the ability to 
communicate effectively.
    And our committee also had the benefit of evaluating Judge 
Barrett in 2017, when then-professor Barrett was nominated to 
the Seventh Circuit Court of Appeals, where she now serves as 
judge. And we interviewed Judge Barrett for over 3\1/2\ hours, 
Ms. Roberts and I, and we received additional information from 
her in the interim.
    The Standing Committee concluded that Judge Barrett's 
integrity, judicial temperament, professional competence met 
the very high standards for appointment to our Supreme Court. 
Our rating of ``well qualified'' reflects the consensus of her 
peers that know her best.
    Thank you, Chairman Graham and Ranking Member Feinstein for 
your staffs accommodating us to be here today. They were 
professional and gracious at every turn. Thank you.
    [The prepared statement of Mr. Noel appears as a submission 
for the record.]
    Chairman Graham. Well, thank you. Before we turn to Ms. 
Roberts there is contention on our side about the ABA at times, 
but as chairman I always have considered the input to be 
important, even when I disagree with it, and during my time we 
have continued the practice of ABA input and I hope those who 
follow me will do so.
    Ms. Roberts?

           STATEMENT OF PAMELA J. ROBERTS, BOWMAN AND
              BROOKE LLP, COLUMBIA, SOUTH CAROLINA

    Ms. Roberts. Thank you, Mr. Chairman, Ranking Member 
Feinstein, and Members of the Committee.
    As my colleague just introduced, I am Pamela Roberts and I 
am the lead evaluator for the nomination of Judge Amy Coney 
Barrett to sit as Justice on the Supreme Court of the United 
States. It is my honor to be here today and to present the 
testimony on behalf of the committee's evaluation of Judge 
Barrett's professional qualifications.
    Let me first start with what the committee did not do. We 
did not base our rating on, or seek to express any view 
regarding Judge Barrett's philosophy, political affiliation, or 
ideology. We also did not solicit information as to how Judge 
Barrett might vote on specific issues or cases that might come 
before the Supreme Court. Rather, the Standing Committee's 
evaluation of Judge Barrett is based solely on the 
comprehensive, nonpartisan, non-ideological peer review of the 
nominee's integrity, professional competence, and judicial 
temperament.
    In evaluating integrity, we considered the nominee's 
character and general reputation in the legal community, as 
well as the nominee's industry and diligence. Judge Barrett has 
earned and enjoys an excellent reputation for integrity and 
outstanding character. Judges and lawyers alike uniformly 
extolled the nominee's integrity. We can recount a few 
comments, such as, ``She is incredibly honest and forthright.'' 
``She is exactly who you think she is.'' ``Nothing about her is 
fake.'' ``She is good, decent, selfless, and sincere.'' ``She 
is an exemplar of living an integrated life in which her 
intellect, integrity, and compassion weave the different 
threads of her life together seamlessly.''
    On the basis of these and many, many other laudatory 
comments and analysis, she received our comprehensive--we 
received, excuse me--through our comprehensive evaluation, the 
Standing Committee concluded that Judge Barrett possesses the 
integrity required of a ``well qualified'' rating.
    Professional competence encompasses such qualities as 
intellectual capability, judgment, writing, and analytical 
abilities, knowledge of the law, and breadth of experience. A 
Supreme Court nominee must possess exceptional professional 
qualifications, including an especially high degree of legal 
scholarship, academic talent, analytical and writing abilities, 
and overall excellence. Judge Barrett's professional competence 
exceeds these criteria.
    In our evaluation of Judge Barrett's professional 
competence, the members of the Standing Committee not only 
evaluated the reports mentioned by my colleague by the 
practitioners and the academic reading groups but then went 
further to obtain the views of lawyers, academics, and Judge 
Barrett's judicial peers. Descriptions of her intellect are 
captured with comments such as these: ``She is whip smart.'' 
``She is highly productive, punctual, and well prepared.'' ``A 
brilliant writer and thinker.'' ``She is quite pragmatic.'' 
``Judge Barrett is an intellectual giant with people skills and 
engaging warmth.'' ``An amazing student''--this came from a 
professor, obviously--``without question the smartest student I 
have ever taught.'' But put it simply, one said, ``The myth is 
real. She is a staggering academic mind.''
    Given the breadth, depth, and strength of the feedback we 
received, the Standing Committee concluded that Judge Barrett 
had demonstrated professional competence to exceptional and 
sufficiently outstanding to be rated ``well qualified.''
    In evaluating her judicial temperament, the Standing 
Committee considers a nominee's compassion, decisiveness, open-
mindedness, courtesy, patience, freedom from bias, and most of 
all, commitment to equal justice under the law.
    The following comments provide insight into her demeanor as 
a jurist: ``She is always willing to be helpful, engage with 
others on a topic, even when she has a different philosophy.'' 
``When she writes a dissent she is collegial.'' ``She is an 
efficient judge. She is always prepared.'' ``At oral arguments 
she asks insightful questions. There is never a hint of sarcasm 
in her questioning.'' ``She is also a good listener.'' ``She 
has a calm, scholarly temperament.''
    Judge Barrett has demonstrated stellar judicial temperament 
in all settings, and meets the standard of ``well qualified.''
    In conclusion, Judge Barrett meets the highest standards of 
integrity, professional competence, and judicial temperament. 
It is the opinion of the ABA Standing Committee on the Federal 
Judiciary that Judge Barrett is well qualified to serve as an 
Associate Justice of the Supreme Court of the United States.
    Thank you so much.
    Chairman Graham. Well, thank you, and to the extent that 
the American people could hear what you had to say I think it 
would be reassuring in terms of the Bar Association's taking 
the time and effort to do something this important. We are all 
grateful.
    Were either one of you involved in the Justice Kagan, 
Sotomayor confirmation process?
    Ms. Roberts. No, sir.
    Mr. Noel. I was not.
    Chairman Graham. Okay. The reason I mention that, the same 
things that were said today about Judge Barrett were also said 
about Justices Sotomayor and Kagan, and quite frankly, every 
other nominee that I have had the pleasure to associate with on 
the Judiciary Committee.
    In terms of the three areas that you evaluate, how much 
time and attention went into this, Ms. Roberts?
    Ms. Roberts. On behalf of the entire committee?
    Chairman Graham. Yes.
    Ms. Roberts. Thousands of hours.
    Chairman Graham. Okay. Mr. Noel, are you in agreement with 
the summary given by Ms. Roberts?
    Mr. Noel. Yes, indeed. Yes.
    Chairman Graham. In terms of--both of you are active in the 
practice of law?
    Ms. Roberts. Except for the last 2\1/2\ weeks.
    [Laughter.]
    Chairman Graham. Well, I can't show favoritism here, Ms. 
Roberts, but I know you and it is good to have somebody without 
an accent come to the Committee.
    Mr. Noel, are you involved in the practice of law?
    Mr. Noel. I am a full-time practicing senior partner in my 
law firm, yes.
    Chairman Graham. And you have people's personal interest 
and property rights in your hands as a lawyer. Is that correct?
    Mr. Noel. I do, yes.
    Chairman Graham. Same for you, Ms. Roberts?
    Ms. Roberts. Yes.
    Chairman Graham. You are very well known in our State, by 
the way.
    Simply put, would both of you feel comfortable going before 
Judge Barrett?
    Mr. Noel. Absolutely.
    Ms. Roberts. Absolutely.
    Chairman Graham. Think you folks would get a fair shake?
    Mr. Noel. No doubt in my mind.
    Ms. Roberts. I would agree with that.
    Chairman Graham. Thank you all. You have done the country 
an invaluable service. Thank you.
    Senator Feinstein.

          OPENING STATEMENT OF HON. DIANNE FEINSTEIN,
          A U.S. SENATOR FROM THE STATE OF CALIFORNIA

    Senator Feinstein. Well, I would like to say thank you, 
too. One of the things that I have observed over my tenure on 
the Committee is really how extraordinarily valuable the ABA 
has been, and as a non-lawyer, particularly to me. So I just 
wanted to be able to say a word of thanks to you, and I hope 
you keep it coming. We very much welcome your advice, your 
counsel, and your legal professionalism. So, thank you.
    Ms. Roberts. Thank you.
    Senator Feinstein. That is it. Thank you.
    Chairman Graham. Thank you. I have a list of letters 
supporting the nomination of Judge Barrett in would introduce 
for the record in this folder. Without objection.
    [The information appears as submissions for the record.]
    Chairman Graham. Senator Cornyn.
    Senator Cornyn. Mr. Chairman, I have a letter from the 
Independent Women's Voice in support of the nominee. I would 
ask unanimous consent that it be made part of the record.
    Chairman Graham. Without objection.
    [The information appears as a submission for the record.]
    Chairman Graham. On our side, would anybody like to say 
something? You don't have to. Would anybody like to ask 
questions? Senator Kennedy.
    Senator Kennedy. I just wanted to thank you for all your 
hard work and the time you spent on this.
    Mr. Noel. Thank you.
    Ms. Roberts. Thank you.
    Chairman Graham. Senator Coons, anything?
    Senator Coons. Yes, if I could. Just two questions for you, 
one on a broader issue of the ABA and its role in confirmation 
and then another on diversity in the Federal courts.
    President Trump has named 10 judicial nominees who were 
subsequently rated by the ABA as ``not qualified.'' And by 
comparison, not a single judicial nominee of the Obama 
administration was rated as ``not qualified.'' And these 
ratings have led the Assistant AG for the Office of Legal 
Policy to write, in an editorial, that the ABA evaluates 
nominees of Republican Presidents more harshly than those of 
Democratic Presidents.
    Does the ABA take political considerations such as this 
into account when it provides this Committee with ratings?
    Mr. Noel. Thank you, Senator Coons. Our evaluations are 
done in an apolitical, neutral, impartial way. We do not take 
into account political affiliation, religious preference, 
philosophy, personal views. We focus solely on the professional 
qualifications to serve.
    Ms. Roberts. And if I might add, Senator, that under the 
two administrations there was a different practice. Under the 
Obama administration the ABA process actually goes forward 
before going to the Senate Committee.
    Senator Coons. Correct.
    Ms. Roberts. And so you don't have--it addresses 
problematic nominees before they are formal nominees.
    Senator Coons. Correct. One of my repeatedly stated 
concerns has been racing forward with nominees before we get 
your input on qualification, which I tend to rely on.
    One other question, if I might. By nearly every metric, the 
Trump administration's judicial nominees have been among the 
least diverse of any President in generations. He has made 50 
nominations to the circuit courts, not one of whom was Black. 
In fact, over his 200 nominations, about 85 percent have been 
white, and only 25 percent have been women.
    Yesterday, in response to a question from Senator Booker, 
Judge Barrett could not name a single book, study, or law 
review that in any way addressed racial discrimination in this 
legacy in American law. I am not suggesting in any way that 
that is disqualifying. I am simply saying that at a time when 
such books are bestsellers, at a time when this central, 
challenging issue for the United States and for our legal 
system about how to address, recognize, combat the legacy of 
racial discrimination, I just wondered if you could briefly 
speak to the importance of diversity on the bench and in the 
legal community more broadly.
    Mr. Noel. Senator, we are not here to speak for the 
American Bar Association. We are the independent body of the 
Standing Committee on the Federal Judiciary. But in terms of 
this evaluation and the work that we did, I can share with you 
that of the hundreds of people that we reached out to, who 
confided in us and gave us their very candid views, we didn't 
hear a hint of any concern by anyone that this nominee suffers 
from some kind of malady in terms of discrimination.
    Senator Coons. Let me be specific and clear. I was not 
intending to imply that in any way. Her failure to respond to 
Senator Booker's question yesterday with a specific example, I 
did not mean to imply it suggested any bias. Just it led to me 
to question whether or not having broader diversity on our 
courts would bring into the decision-making role those who 
bring personal insight and experience and whether or not all 
who serve on our bench and in Congress should be more aware of 
this challenge facing our Nation.
    Ms. Roberts. If I may, Senator, I just would remind the 
Committee that there are two questions in the Senate Judicial 
Questionnaire that the nominees complete, that do address 
diversity. One goes to membership of any organization or club 
that might discriminate, and the other question goes to a view 
of diversity, and is usually followed up in the face-to-face 
interview by the evaluator and the nominee. And so there is 
some intentional discussion about those important issues.
    Senator Cornyn. Mr. Chairman?
    Senator Coons. Thank you----
    Senator Cornyn. Mr. Chairman?
    Chairman Graham. Yes, Senator Cornyn.
    Senator Cornyn. Mr. Chairman, it strikes me that the 
nominee understands diversity, appreciates diversity. She has 
got two children she adopted from Haiti. So I don't think she 
needs to have anybody preaching to her about the importance of 
diversity. Her own family is racially diverse, and I think it 
speaks volumes about her character and her husband's character 
for what they have done in terms of adding to their already 
large family by adopting these two children from Haiti.
    Chairman Graham. Okay. Anybody else? Senator Cruz.
    Senator Cruz. Mr. Chairman, I wanted to thank both of the 
witnesses for the hard work. I know you've put a lot of time 
into these interviews, and thank you for the thoroughness with 
which you approached the job, and thank you for relaying to the 
Committee what you found from those interviews.
    I also wanted to enter into the record a letter from First 
Liberty, which is a legal organization that defends religious 
liberty, in which they support the confirmation of Judge 
Barrett and say, in particular, that ``we are confident that 
Judge Barrett will protect the religious freedoms and 
constitutional rights of all Americans.''
    Chairman Graham. Without objection.
    [The information appears as a submission for the record.]
    Chairman Graham. Thank you, both, for the input to the 
Committee, for all the time and effort. I think it is 
invaluable to the Committee and the country. And tell General 
Rives that I said hello. He was my boss when I was in the Air 
Force. Thank you very much.
    Mr. Noel. Thank you.
    Ms. Roberts. Thank you.
    Chairman Graham. Our second panel.
    [Pause.]
    Chairman Graham. Take your time.
    [Pause.]
    Chairman Graham. Are we ready there? Okay. Thank you.
    So, here is what I will do. We have eight witnesses: six 
are virtual, two are with us in person--four supporting the 
nomination, four opposed. And we will do it in the order that I 
call out. Just be patient with me.
    Dr. B-h-a-t-t-i, Care Free Medical, Lansing, Michigan, are 
you with us?
    Dr. Bhatti. Yes, sir, I am here.
    Chairman Graham. How do you say your name, sir?
    Dr. Bhatti. ``Bhatti'' is my last name.
    Chairman Graham. Okay. Thank you, Dr. Bhatti.
    The Honorable Thomas Griffith, retired judge, U.S. Court of 
Appeals for the District of Columbia, Washington, DC. Judge, 
are you with us?
    Judge Griffith. Yes, sir.
    Chairman Graham. Thank you.
    Ms. Kristen Clarke, President and Executive Director of 
Lawyers' Committee for Civil Rights Under Law, Washington, DC. 
Ms. Clarke?
    Ms. Clarke. Yes, Chairman.
    Chairman Graham. Thank you.
    Professor Prakash, P-r-a-k-a-s-h, James Monroe 
Distinguished Professor of Law, University of Virginia School 
of Law, Charlottesville. Professor, are you with us?
    Professor Prakash. Here.
    Chairman Graham. Oh, okay. I am sorry. I apologize. Did I 
get your name right?
    Professor Prakash. Very much so.
    Chairman Graham. Oh, good. Thank you, sir.
    Ms. Crystal Good, Charleston, West Virginia. Ms. Good, are 
you with us?
    Ms. Good. Yes, Chairman, I am here.
    Chairman Graham. Okay.
    Ms. Amanda R-a-u-h hyphen B-i-e-r-i, Associate, Miller 
Canfield, Grand Rapids, Michigan.
    Ms. Rauh-Bieri. Yes, Chairman, I am here.
    Chairman Graham. How do you say your name, ma'am?
    Ms. Rauh-Bieri. It is ``Rauh-Bieri.''
    Chairman Graham. Thank you.
    Ms. Stacy Staggs, Little Lobbyists, Charlotte, North 
Carolina.
    Ms. Staggs. Yes, Chairman, I am here.
    Chairman Graham. Thank you.
    And last is Ms. Laura Wolk--is that right, ma'am?----
    Ms. Wolk. Yes.
    Chairman Graham. Thank you--from Washington, DC.
    So, Dr. Bhatti, will you please lead us off? You each have 
5 minutes and then be subject to questions by the Committee. 
And thank you all for taking the time to attend and give us 
your input.

       STATEMENT OF FARHAN BHATTI, M.D., CHIEF EXECUTIVE
   OFFICER AND MEDICAL DIRECTOR, CARE FREE MEDICAL, LANSING, 
                            MICHIGAN

    Dr. Bhatti. Well, thank you, Chairman Graham, and thank you 
to this Committee for welcoming me here. My name is Dr. Farhan 
Bhatti. I am a family physician practicing in Lansing, 
Michigan, and the CEO of a nonprofit, Care Free Medical, which 
provides medical, dental, and optometry care to low-income, 
underinsured, and uninsured individuals.
    I am also a board member and Michigan State lead for the 
Committee to Protect Medicare, a national organization of 
physicians in more than 40 States who want to make sure our 
patients get the care they need, regardless of financial 
status. Most of my patients are Medicaid recipients, men and 
women who work two, sometimes three jobs. Because Michigan 
expanded Medicaid in 2014, under the Affordable Care Act, more 
than 750,000 Michiganders can now get the treatment they need. 
There are countless stories from my daily work I could present, 
but I will share just two.
    The first is a middle-aged male who had a long history of 
uncontrolled diabetes and who recently acquired Medicaid. Since 
he wasn't able to afford insulin before getting Medicaid 
insurance we tested his blood in our office and found his 
hemoglobin A1C had risen to 17.5 percent, when normal is 5.6 
percent or below. An A1C of 17.5 means his blood sugar was 
averaging 455 milligrams per deciliter, and as a physician my 
goal is to have diabetic patients average 150 or less. Blood 
sugar as high as his, if left untreated, will almost certainly 
lead to death.
    Because of the ACA, I was able to start him on an intensive 
insulin regimen, and within 4 months his blood sugar dropped 
more than 200 points. The blurred vision he was experiencing 
significantly improved, his kidney function improved, and he 
was able to find a job. The ACA literally saved this man's 
life.
    Another story I would like to share involves a patient with 
bipolar disorder who was doing well and was stable and healthy 
until she lost her job and her health insurance due to COVID-
19. I had been prescribing a medication that worked wonders to 
keep her mood stable, but without insurance that medication 
costs more than $1,200 per month, which she simply couldn't 
afford. I tried prescribing older, inexpensive generic 
medications so she could pay cash for them, hoping we would 
find an effective alternative. None of them worked. She 
developed a severe depressive episode. Her energy and 
motivation vanished. She gained significant weight because of 
the side effects of the older, generic medications. She had 
uncontrollable crying spells and she experienced suicidal 
ideation.
    Thanks to Michigan's expansion of Medicaid, as allowed 
under the ACA, my patient's suffering ended because we 
eventually got her enrolled into Medicaid. We resumed the 
medication she desperately needed, regulated her dopamine, and 
stabilized her mood. She can once again contribute to the 
economy and support herself financially.
    These are just a fraction of the many positive outcomes of 
the ACA I have witnessed over the years. Simply put, as a 
front-line doctor I witness every day how the ACA has improved, 
is improving, and will continue to improve the lives of 
ordinary, hard-working people. For those without health 
coverage, they live in fear that they are only one illness or 
one injury away from bankruptcy. Medical bankruptcy in this 
country is in the hundreds of millions of dollars. It breaks my 
heart.
    So, during a pandemic that continues to kill 1,000 
Americans each day, people need the ACA and the freedom it 
provides now more than ever. Without the ACA, insurance 
companies would be able to discriminate against a new 
generation of people with COVID-19-related pre-existing 
conditions, and anyone with a pre-existing condition by 
refusing to cover them or by raising costs.
    As a family doctor who cares deeply about my patients, I am 
grateful to be here today to advocate for them and for all 
patients in our great Nation, and I am here to urge against 
striking down this lifesaving law, or confirming to the Supreme 
Court anyone who would seek to do so.
    As a doctor, I can't talk with expertise about concepts, 
like originalism or textualism. As a doctor, however, I can 
talk about the real-world harm of ending the ACA to the real-
life Americans who have to choose between going to a doctor or 
buying groceries. And as a physician who engages with other 
doctors across the Nation, I share the concern that any judge 
who opposes the ACA endangers a lifeline that my patients count 
on to stay healthy, and in many cases, to stay alive.
    Thank you, again, for the opportunity to share my patients' 
stories with you. Thank you.
    [The prepared statement of Dr. Bhatti appears as a 
submission for the record.]
    Chairman Graham. Thank you, sir. Thank you very much.
    Judge Griffith?

   STATEMENT OF HON. THOMAS GRIFFITH, JUDGE, RETIRED, UNITED 
 STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT, 
                         WASHINGTON, DC

    Judge Griffith. Mr. Chairman, Ranking Member Feinstein, and 
Members of the Committee, from 2005 until last month I was a 
judge on the U.S. Court of Appeals for the D.C. Circuit. But 
before that, I spent several years and many long hours in the 
hearing room where you are now as the nonpartisan Senate legal 
counsel. I am appearing to you virtually, but it is good to be 
back in a room where I spent so much time working with such 
great Senators.
    I am honored by the invitation to speak in support of the 
confirmation of my friend, Amy Coney Barrett, to the Supreme 
Court of the United States. As you and the Nation have seen 
during these hearings, Judge Barrett is supremely well 
qualified to join the other esteemed members of the Court.
    A recent survey found that over two-thirds of the American 
people believe that Supreme Court Justices based their 
decisions primarily on the law and not on politics. In light of 
that, there is something deeply disturbing about much of the 
debate surrounding judicial nominations in our Nation. Many 
political leaders and pundits assume that a judge will cast 
their vote based on partisan preference. Such explanations 
typically made for short-term political gain do much harm. They 
undermine public confidence in an independent judiciary, which 
is the cornerstone of the rule of law.
    The rule of law is a fragile possibility that should be 
more carefully safeguarded by our leaders. I agree with the 
Chief Justice, quote, ``We do not have Obama judges or Trump 
judges, Bush judges or Clinton judges,'' he said. ``What we 
have is an extraordinary group of dedicated judges doing their 
level best to do equal right to those appearing before them.''
    Having served 15 years on the D.C. Circuit alongside 
judicial appointees of every President, from Carter to Trump, I 
have seen firsthand that judges can and do put aside party and 
politics in a good-faith effort to correctly interpret the law.
    Justice Kagan made the same point at her confirmation 
hearing. She flatly rejected the idea that difficult cases turn 
on, quote, ``what's in a judge's heart,'' closed quote. 
Instead, as she put it with her characteristic wit, ``It's law 
all the way down.'' That is precisely the type of jurist Judge 
Barrett has been.
    In Price v. City of Chicago. she ruled against pro-life 
litigants who challenged an ordinance that barred them from 
approaching women near abortion clinics for the purpose of 
leafleting, protesting, or counseling. Even though there were 
substantial arguments under the ordinance that the ordinance 
violated the First Amendment under an aggressive reading of 
recent Supreme Court precedent, Judge Barrett joined an opinion 
that followed binding precedent and upheld the ordinance.
    She displayed the same impartial approach in rulings that 
allowed the first Federal executions in 17 years to proceed, 
regardless of her personal views on the death penalty. As 
constitutional scholar Jonathan Adler pointed out, quote, 
``These decisions certainly are not in line with church 
teaching and further suggest that Judge Barrett applies the law 
whether or not that coincides with her personal beliefs.''
    Judge Barrett brings something else to her work as a judge 
that is especially vital to our Nation at a time when many 
regard those with differing views as enemies, not friends. In 
the words of Judge Laurence Silberman, my friend and 
distinguished former colleague on the D.C. Circuit, for whom 
Judge Barrett clerked, quote, ``Amy combined a powerful 
analytical ability with an innate kindness and sense of 
decency.'' The public record makes clear Judge Barrett's 
powerful analytical ability. I don't think we can overstate the 
importance of her kindness and decency.
    Judge Barrett's colleague at Notre Dame, O. Carter Snead, 
says of her, ``She genuinely seeks to understand others' 
arguments. Time and again, I have seen her gently reframe a 
colleague's arguments to make them stronger, even when she 
disagreed with them.''
    Professor Lisa Grow Sun of Brigham Young University 
observes, quote, ``Amy always welcomes the opportunity to learn 
more from people whose perspectives differ from her own. She is 
always very generous to other people's arguments.''
    Finally, while some of the discussion about Judge Barrett's 
faith has been tinged with bigotry, some of it comes from a 
sincere desire to know whether her faith will dictate her 
decisions as a Justice. As a person of faith who served on the 
D.C. Circuit, let me assure you it will not. The oath that 
every Federal judge must take is intended to transform the 
citizen into an impartial judge, whose loyalty, while 
performing her judicial role, is to the Constitution and laws 
of the United States, and not to any President, party, or 
religion. In taking the oath, the judge makes a solemn promise, 
with God as witness, that when acting as a judge she will be a 
different person than when she is not acting as a judge.
    Robert Bolt's portrayal of Thomas More in ``A Man for All 
Seasons'' captures this point simply and powerfully: ``What is 
an oath,'' More asks, ``but words we speak to God?''
    In other words, for a person of faith, the judicial oath is 
a promise to the Nation and God that she will not do the one 
thing her secular critics most fear: reach for outcomes based 
on her religious world view. When wearing the robe, there is no 
conflict between following God and Caesar. It is Caesar all the 
way down.
    I thank you for this opportunity and look forward to any 
questions that you might have.
    [The prepared statement of Judge Griffith appears as a 
submission for the record.]
    Chairman Graham. Thank you, Judge, very much.
    Ms. Clarke?

STATEMENT OF KRISTEN CLARKE, PRESIDENT AND EXECUTIVE DIRECTOR, 
 LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW, WASHINGTON, DC

    Ms. Clarke. Chairman Graham, Ranking Member Feinstein, and 
Members of the Committee, thank you for the opportunity to 
testify in connection with the Supreme Court nomination of 
Judge Amy Coney Barrett. My name is Kristen Clarke, president 
and executive director of the Lawyers' Committee for Civil 
Rights Under Law, one of the Nation's oldest civil rights 
organizations. Founded in 1963 at the request of President John 
F. Kennedy, we turn to the courts to protect the civil rights 
and voting rights of Black people and other communities of 
color across our Nation.
    We have conducted an exhaustive review of Judge Barrett's 
writings, speeches, and decisions during her time on the court. 
Judge Barrett's views are far outside the mainstream, and for 
evidence of this one need look no further than her own words 
before this Committee this week. Judge Barrett would not say 
whether voter intimidation is illegal, though outlawed by 
Section 11(b) of the Voting Rights Act and Federal criminal 
laws.
    Judge Barrett would not concede that voting discrimination 
still exists, saying she could not endorse that proposition and 
calling it a very charged issue, when questioned about the 
Court's Shelby County v. Holder decision. Even Chief Justice 
Roberts, the author of that devastating ruling, noted, quote, 
``Voting discrimination still exists. No one doubts that.''
    Judge Barrett would not say whether absentee ballots are 
essential to voting in the pandemic, calling it a matter of 
policy on which she can't express a view. Judge Barrett has 
left open the possibility that she would participate in cases 
that may arise out of the election now underway. It is 
troubling that she would not recuse herself under these 
circumstances, and her stance sends a disconcerting message to 
the 17 million Americans who have voted to date, with millions 
more to come. These are voters who want their ballots and not 
an election season court pick to determine the election 
outcome.
    Her record reflects the same. In Kanter v. Barr, she 
suggested the right to vote deserves less protection than the 
right to own a gun, and that is a radical point of view no 
matter what one's view of the Second Amendment. In her words, 
she described the right to serve on juries and to vote as 
belonging only to, quote, ``virtuous citizens.''
    She has made clear that her judicial philosophy has been 
molded by the late Justice Scalia, who described the Voting 
Rights Act as, quote, ``a perpetuation of a racial 
entitlement.'' When asked if she agreed with this, she refused 
to answer.
    During these hearings, Judge Barrett has gone to great 
lengths to distance herself from the reality of voter 
suppression and voting discrimination that we face today. This 
should sound an alarm to anyone in our country who cares about 
protecting voting rights for all Americans. In this moment, we 
are in lower court's fighting efforts to purge voters from the 
rolls, efforts to shutter polling sites in communities of 
color, burdensome restrictions such as notary and witness 
requirements for those casting absentee ballots during the 
pandemic, and more.
    In this term, the Court will decide a case arising out of 
Arizona, where the issue concerns racial discrimination in 
voting under both the Constitution and Section 2 of the Voting 
Rights Act. Given Judge Barrett's unwillingness to recognize 
the threats that Black people and communities of color face in 
voting, I am deeply concerned about how she would handle this 
case and many other such cases that will come before the Court.
    A brief word on employment discrimination. Judge Barrett 
revealed alarming insensitivity to racial harassment in the 
workplace in Smith v. Illinois Department of Transportation. 
There she held that a Black traffic patrol driver was not 
subject to a hostile work environment, even though co-workers 
frequently subjected him to use of the N-word. Judge Barrett 
concluded that this was an egregious racial epithet but 
concluded that this sort of racial hostility was not enough to 
prove discrimination. This stance is simply incomprehensible.
    The nomination of Justice Barrett arises at one of the most 
tumultuous times in our Nation's history. We are wrestling with 
a pandemic, protests about unconstitutional policing practices, 
racial injustice, and more. Our Nation deserves a Justice who 
is committed to protecting the hard-earned rights of all 
Americans, particularly our Nation's most vulnerable. For these 
reasons, the Lawyers' Committee for Civil Rights Under Law 
opposes Judge Barrett's nomination.
    Thank you.
    [The prepared statement of Ms. Clarke appears as a 
submission for the record.]
    Chairman Graham. Thank you, Ms. Clarke.
    Professor Prakash?

  STATEMENT OF SAIKRISHNA PRAKASH, JAMES MONROE DISTINGUISHED 
    PROFESSOR OF LAW, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, 
                   CHARLOTTESVILLE, VIRGINIA

    Professor Prakash. It is a pleasure and an honor to be with 
you here today to discuss Judge Barrett. Thank you, Chairman 
Graham. Thank you, Ranking Member Feinstein and Members of the 
Committee. I had the pleasure of working for the great Senator 
Alan Simpson over the summer and so I fondly remember this 
building.
    We heard the ABA rate the Judge as ``well qualified.'' I 
think the only reason why she wasn't rated higher is that there 
is no higher rating by the ABA. I think she is uber-qualified. 
I think, to use a sports metaphor, she is a five-tool athlete. 
She is brilliant. She is a tremendous educator. She is an 
institutionalist. She is a role model, and I will say, finally, 
she is an originalist, and I think that is a good thing.
    So, I will briefly go over some of these points, and I 
certainly welcome your questions.
    With respect to her brilliance, I think her articles 
reflect a deep appreciation of complex issues and ability to 
break down those complex issues in a manner that people can 
understand. I would point you to her article entitled, ``The 
Supervisory Power of the Supreme Court,'' where she discusses 
the Supreme Court's assumption of power to prescribe procedural 
and evidentiary rules in the 1950s over the inferior courts, 
and how that is problematic, given that Congress has 
occasionally granted the Supreme Court authority to impose 
rules on the lower courts. And so it is an interesting time 
where she is basically a nominee to the Supreme Court and 
criticizing the Supreme Court's conclusions in this regard.
    I think her discussion of precedent is very nuanced, and I 
think it reflects a willingness to not overturn the entire 
constitutional order in order to get things right. She properly 
notes that judges do not need to reconsider precedent in every 
case, and I think that is utterly and totally appropriate.
    But don't just take my word or the word of the ABA. Harvard 
law professor Noah Feldman has said she is brilliant, and he 
also said she is conscientious. I agree with both of those 
adjectives.
    As an educator, you know that she has won the Teacher of 
the Year award three separate times, the Distinguished 
Professor of the Year award, and I think this reflects her 
attention to students, her evident care for them. But we must 
never forget that Justices, and, of course, Senators, are 
educating the Nation about our nations and laws, and I think 
that she will carry that task off with ease. As you saw during 
your testimony here, she is very good at breaking down complex 
concepts.
    I think she is an institutionalist and I think that is 
reflected in her writing. She cares deeply about America. She 
does not want to burn the whole place down. And I don't think 
she will do anything that brings the Supreme Court into 
disrepute, and I think she has good company because I think all 
the Justices try their level best, even as they disagree with 
each other, to understand that each of the Justices comes from 
the right place. As Senators today discussed, they have the 
right values and they have the right instincts.
    She is a role model. I think Senator Graham has spoken to 
that at great length and I won't go into it further.
    Finally, she is an originalist. Originalists basically 
believe that the meaning of the law that matters is the meaning 
at enactment, not what a judge or an executive branch would 
make with the law later on. And I am reminded of the Biden 
Condition, named after Senator Joseph Biden. You probably have 
heard of him. Senator Biden was disturbed by the Reagan 
administration's reinterpretation of the ABM treaty, and he got 
this august body to add a condition to the IMF treaty, which 
said the interpretation of the treaty that matters is the 
interpretation that we jointly had when we consented to your 
ratification of the treaty. You cannot reinterpret treaties 
decades later.
    That is an originalist argument, and I would argue that is 
what every lawmaker wants. Right? Lawmakers craft text. They 
get it marked up in Committee. They take it to the floor. There 
might be amendments there. They then take it to the Conference 
Committee. There might be amendments there. They bring it back. 
They spend a lot of time thinking about that language, thinking 
about the context. And then what they don't want is some judge 
or some Executive later on twisting that statute, twisting that 
enactment to suit some other purposes.
    And I think the alternative is, of course, the Living 
Constitution approach, or the living statutory approach, but I 
don't think that honors you as lawmakers. It really leaves the 
lawmaking power with the judge or the executive officer.
    And if you look at our, you know, recent history, the 
Living Constitution has brought us things like the living 
Presidency, a Presidency, I think, that across all parties has 
acquired powers not granted to it by the Constitution. Think of 
the war power. Go back and read what Washington and others have 
said about it. It would shock you. Think about your role in 
treaties. It is greatly diminished.
    So, I will end with caution and hope. Originalists and 
conservatives will be disappointed with Judge Barrett because 
she will render results that they disagree with politically. 
That is entirely appropriate. And I will end with a note of 
hope. Progressives should be happy because she will give the 
meaning to the laws that is appropriate at the time that you 
passed it, and I don't think that she is going to use her 
position to advance her personal or religious agenda.
    Thank you so much.
    [The prepared statement of Professor Prakash appears as a 
submission for the record.]
    Chairman Graham. Thank you, Professor.
    Ms. Good?

                   STATEMENT OF CRYSTAL GOOD,
                   CHARLESTON, WEST VIRGINIA

    Ms. Good. Chairman Graham, Ranking Member Feinstein, 
Members of the Committee, thank you for having me.
    My name is Crystal Good, and I am a sixth-generation West 
Virginian, a writer-poet, a small business owner, graduate 
student at West Virginia University, and an advocate for 
survivors of sexual abuse.
    I am the daughter of a white mother and a Black father, and 
I am the proud mother of three brilliant children. These 
identities are all parts of me but not all of me. Who I am 
today is only possible because at 16 years old I had access to 
an abortion.
    As a minor in a State with a parental consent requirement, 
that access was dependent on a judge, because without a shadow 
of a doubt, I could not trust the adults closest to me.
    From the ages of 5 until I was 15, I was sexually abused by 
my white stepfather. He wasn't convicted until 2012, more than 
30 years after the abuse began.
    When I told the grown folks in my life they did not believe 
me at first, and then refused to hold my abuser accountable 
once the truth was out.
    Later, at 16, while in a relationship that brought me joy 
and made me feel safe, I, like 2.7 million Americans a year, 
had an unintended pregnancy.
    Immediately, I knew I wanted an abortion, a very safe 
medical procedure that one in four U.S. women will have in 
their lifetimes. For many reasons, including the decade-long 
abuse she did not protect me from, I could not tell my mother. 
Instead, I sought a judicial bypass.
    I had to navigate not only how to get to the judge but how 
to do so on a school day. I had no idea what I should wear or 
what information he would want. I thought I was going to court 
like on TV.
    But instead, I was ushered into his chambers. It felt very 
intimidating. I told him I was a good student. I was a leader 
in my school. I had opportunities that many young women from 
West Virginia didn't. I wanted to go to college to be a writer.
    I said, ``Your Honor, I have a future. I choose an 
abortion.'' It felt like a miracle an adult believed me, an 
authority figure deemed me to be in charge of my own body and 
my own future.
    I still think what might have happened if I didn't have a 
list of accomplishments or if the judge did not think I was 
competent enough to decide when to start my family, or if he 
believed the harmful stereotype I was raised to believe, that 
Black girls were fast and promiscuous.
    Access to an abortion should not depend on our GPA, the 
color of our skin, where we live, or the luck of the draw. It 
should not depend in any shape, form, or fashion who your 
governor is or who is sitting on the Supreme Court.
    My entire childhood, every adult in my life had failed me. 
None of them deserved to make a decision about my body. I 
needed compassion and trust from my government. All I got was 
another barrier.
    There are thousands like me who are sexually abused by 
parents, guardians, and grownups who are supposed to support 
them. Today, 37 States require parental consent or notification 
for a minor to access abortion.
    Most young people do involve their parents in their 
decision. But for those like me who cannot, these kinds of 
restrictions make abortion hard to get because we have to 
travel, miss work or school, save up for weeks, and pay out of 
pocket.
    The average per capita income in West Virginia is $25,479. 
That is one-seventh of your Senate salaries. In central 
Appalachia, Black and low-income white people struggle to 
access healthcare, including abortion, and to have our 
decisions respected.
    The Supreme Court has made historic decisions to uphold our 
rights and freedoms. My right to an abortion, the integration 
of my public schools, the Affordable Healthcare Act that ensure 
that I have health insurance, and workplace protections for my 
transgender daughter. I have put my faith in the Supreme Court, 
and with this nomination I am losing faith.
    Although the way I have chosen to create my family is 
demonized by some politicians, the reality is that we are like 
most families across the Nation.
    I had an abortion. I have two sons and a daughter who is 
trans. I love my children. We are a proud Afro-lachian family. 
That is African-American Appalachian.
    My story is my own but represents so many people left out 
from the Supreme Court nominee hearings, an entire caste of 
people. That is c-a-s-t-e, caste.
    President Trump has been clear that he would only appoint 
Justices who would overturn Roe v. Wade. Unfortunately, through 
learning about Judge Barrett's record, I understand why the 
President believes she passes the test.
    Please, listen to people who have had abortions. Hear us 
when we ask you do not confirm this nominee. Our futures, our 
families, our lives depend on it. We, too, are America.
    Thank you.
    [The prepared statement of Ms. Good appears as a submission 
for the record.]
    Chairman Graham. Thank you, ma'am, very much.
    Ms. Staggs?

          STATEMENT OF STACY STAGGS, LITTLE LOBBYISTS,
                   CHARLOTTE, NORTH CAROLINA

    Ms. Staggs. Good morning--excuse me, good afternoon, and 
thank you for the opportunity to come and speak with you all 
today.
    I am here to raise my voice against the nomination of Amy 
Coney Barrett and in support of the Affordable Care Act, as 
well as to share my family's story.
    While I appear in this room alone, I bring with me millions 
of families, including 130 million Americans who live with pre-
existing conditions, and millions of Americans who dissent from 
this hearing and any confirmation to the Supreme Court before 
Inauguration Day.
    My name is Stacy Staggs, though I am more frequently 
addressed as Mommy. I live in North Carolina with my husband 
and twin girls, who have complex medical needs and 
disabilities.
    I advocate for their healthcare, education, and community 
inclusion with Little Lobbyists, a family-led organization 
advocating for children like my own.
    I share Judge Barrett's disdain for hypotheticals. As a 
behavioral interviewer, I know that past conduct is an 
indicator of future decision-making, and I am here today 
because Judge Barrett has repeatedly made statements that are 
hostile to the Affordable Care Act.
    A vote for Judge Barrett is a vote to take away healthcare 
and a vote for Judge Barrett is a vote to strike down the law 
that saved the lives of my daughters, and my family is but one 
of many.
    Studies confirm the ACA has saved thousands of lives, 
especially in States that have accepted Medicaid expansion, and 
my family is a real-life example of the ACA's success.
    My twin daughters, Emma and Sara, are adorable and active 
7-year-olds. They are the lights of my life, and we balance a 
busy schedule of therapies and distance learning.
    Sara Bean is my nature lover. She is happiest when she is 
splashing in the water or digging in the dirt, and Emma has a 
smile that lights up her entire face. Her favorite day is 
Tuesday when we go to the farm for therapeutic horseback 
riding. I love them with the same joy and amazement I am sure 
you feel for your own children.
    But 7 years ago, their recent birthday would have been too 
much to hope for. My husband and I were excited to learn we 
were expecting. We were surprised to learn we were having 
twins.
    I had excellent prenatal care, which is one of the 
essential benefits under the Affordable Care Act, and my 
pregnancy was going great, until one day it wasn't.
    I was experiencing pain, so my doctor suggested I come down 
to the hospital for monitoring and within hours--within hours, 
as my vital signs faded, I was rushed to the operating room 
where our small wonders were born via emergency C-section at 28 
weeks.
    They were rushed to the neonatal intensive care unit where 
their survival was far from assured. We sat in vigil for weeks, 
learning an entirely new language of medical terms and holding 
our breath in between heartbeats on their monitors.
    I wasn't able to hold either girl for several weeks, but 
they were about the size of my hand. They had IVs in every 
extremity and skin so fragile you could see through it.
    Emma's birth weight was 1 pound, 9 ounces. She has never 
taken an unassisted breath, or made a sound, due to vocal cord 
paralysis. She has an artificial airway through a breathing 
tube and she eats through a feeding tube that was surgically 
placed when she was 3 months old.
    Her twin sister, Sara, was the bigger of the newborns, at 2 
pounds, and she needed heart surgery at 2 weeks old. That was 
the day percentages took on a new meaning for me.
    The surgeon told us his success rate for Sara's procedure 
was 98 percent. Then he leaned in and said, but that doesn't 
mean much to the parents of the 2 percent.
    To this day when I hear data points and discussion about 
recovery from COVID-19, for example, I am immediately 
transported back to the surgical waiting room.
    When I was finally able to bring my babies home from the 
hospital for the first time after 110 days, we received an 
explanation of benefits with total claims nearing $1 million 
for their care, and in the first 7 years our combined claims 
have surpassed $4 million.
    Without the protections of the Affordable Care Act, my 
daughters would have already hit their lifetime caps and now be 
rendered uninsurable.
    And we have primary insurance through my husband's 
employer. Medicaid support has been a lifeline for Emma because 
she needs 24-hour eyes-on care.
    Medicaid provides Emma with home- and community-based 
services, including nursing, that allow her to stay home with 
us, where she belongs, instead of living in a hospital or other 
medical facility.
    Our country is in a public health crisis right now, one 
that is getting worse by the day. In this moment, we need our 
legislators to protect our families, to provide relief and 
support, to do the job we have elected them to do.
    We do not need to rush through the nomination of a Supreme 
Court Justice who is on the record as hostile to the law that 
provides our healthcare protections. Shifting focus away from a 
relief package for families during a pandemic tells me the 
Committee's priorities are not aligned with those of the 
American people.
    I urge you to listen to us and address the immediate need 
of COVID relief.
    Last, I would like to thank you for the opportunity to give 
my testimony, to say healthcare is a human right, and decency 
matters, and to remind you that as your constituents, my 
children and all children like ours, are your children, too.
    I hope you will remember your duty to all of our children 
as you cast your vote to protect or to take away the healthcare 
their lives depend on to survive and thrive.
    Last, let me share that today is the first day of early 
voting in North Carolina. It is a big day for me here, too. My 
next task is to cast my ballot accordingly.
    Thank you.
    [The prepared statement of Ms. Staggs appears as a 
submission for the record.]
    Chairman Graham. Thank you very much. I am sorry. I jumped 
out of order there.
    We are at Ms. Amanda Rauh-Bieri, then we will get to Ms. 
Wolk.

           STATEMENT OF AMANDA RAUH-BIERI, ASSOCIATE,
            MILLER CANFIELD, GRAND RAPIDS, MICHIGAN

    Ms. Rauh-Bieri. Mr. Chairman, Ranking Member Feinstein, and 
other Members of the Committee, I am deeply honored to speak to 
you about somebody who has had an outsized effect on my life as 
a former boss and a cherished mentor, Judge Amy Coney Barrett.
    I know Judge Barrett to be a person of the highest 
character and I sincerely and enthusiastically support her 
nomination to be an Associate Justice of the United States 
Supreme Court.
    I had the privilege to serve as a law clerk during Judge 
Barrett's first term on the bench, joining her chambers shortly 
after her confirmation to the Seventh Circuit in 2017.
    From the very beginning, I saw Judge Barrett exhibit the 
rare and unique set of qualities that make her an exemplary 
judge. She is a brilliant thinker. She analyzes and writes 
about legal issues with striking clarity and precision. She is 
patient, thoughtful, and compassionate.
    She brings each of these qualities to bear on every case 
she decides. Judge Barrett is dedicated and disciplined and, as 
a judge, she is committed above all else to the rule of law.
    As she has said and as I have seen, Judge Barrett 
understands that policy decisions must be left to the political 
branches. The role of the judge is to enforce the law as 
written.
    I have seen Judge Barrett put that unwavering commitment to 
the law into action in every case before her. She approaches 
each case with an open mind. She commits to the idea that 
either side might, in the end, have the better legal argument.
    Judge Barrett's open-mindedness is grounded in her 
compassion. She has spoken about viewing each decision from the 
perspective of the losing party. I saw her put that ethic into 
practice.
    It would be easier in many ways not to take this more 
demanding approach. But I learned from Judge Barrett that the 
law is about fairness over efficiency and that every member of 
society and every party that comes before the court is entitled 
to equal justice.
    Judge Barrett is a judge who applies the law fairly and 
reaches the result that is required, and she writes with 
empathy and appreciates the real-life impact of her decisions.
    Alongside Judge Barrett's powerful intellect and enduring 
commitment to the law is her determination and discipline. In 
deciding cases, Judge Barrett has never relied simply on her 
extraordinarily sharp legal mind. She pairs that gift with the 
dedication to the full process in each case.
    She never takes a short cut. She thoroughly examines the 
facts and the applicable law in each case. She is an intensely 
hard worker. Even the early rising clerks often arrived at her 
chambers to find the light already on underneath her office 
door.
    Even with her towering intellect and unfailing work ethic, 
Judge Barrett always took seriously the views of her law 
clerks.
    She would often pop over to our offices, ready to hear our 
perspective in a case or discuss a particular legal question.
    It is a testament to her respect and charity that she often 
walked the path from her office to mine, eager to hear my 
thoughts on the legal questions or to engage me in discussion 
over the thornier issues.
    It was in those conversations that Judge Barrett created a 
culture that encouraged us to voice our differing opinions, 
even if we thought she would ultimately disagree.
    She sees the value in discourse and she fosters that value 
in her clerks, teaching us to be open and curious and humble 
about the law and life, and from what I saw as a law clerk, 
Judge Barrett approached her colleagues on the bench with the 
same gracious humility and openness that I experienced from 
her.
    Judge Barrett's impact on my life runs far deeper than 
legal training. As I said, I was in Judge Barrett's first class 
of clerks and I joined her chambers in January of 2018, 2 weeks 
after my graduation from law school.
    I loved my time in law school, but I also spent much of it 
unsure of myself. I often tried to downplay my presence, afraid 
that I was wrong or inadequate. I wasn't certain I had what it 
took to succeed.
    Judge Barrett changed that for me. Her example and 
mentorship inspired in me confidence I did not know I had. I 
can't point to a single event or a point in time when that 
change occurred. Change like that, formative change, happens 
gradually across hundreds of conversations and hours shared.
    Judge Barrett leads in law and in life with conviction, 
generosity, and courage. She inspires me to do the same.
    For example, I can tell you with certainty that I would not 
have the confidence to be here speaking to this Committee 
without Judge Barrett's influence in my life.
    Judge Barrett has the rare gift of lifting everyone around 
her. She knows how to bring out the best in her clerks, 
spurring each of us to excellence. Judge Barrett has her own 
large family, but that did not stop her from treating her 
clerks like family, too.
    Shortly after I arrived in chambers, my three co-clerks and 
I piled into the back of Judge Barrett's minivan, and she drove 
us from South Bend to Chicago for her first set of oral 
arguments.
    She cared deeply about each of us, investing time and 
encouraging us to cultivate rich, fulfilling, and well-rounded 
lives, both in and beyond the law.
    Clerking for Judge Barrett and being mentored by her is an 
honor. Judge Barrett has elevated my thinking, writing, and 
character, not by prescription but simply by being herself.
    As a Supreme Court Justice, she would be a role model for 
generations to come as she is for me. I am proud and honored to 
support Judge Amy Coney Barrett's nomination to serve as an 
Associate Justice of the United States Supreme Court.
    Thank you.
    [The prepared statement of Ms. Rauh-Bieri appears as a 
submission for the record.]
    Chairman Graham. Thank you very much.
    Our last witness is Ms. Wolk. Did I get that right, Ms. 
Wolk?
    Ms. Wolk. You did.
    Chairman Graham. Thank you.

            STATEMENT OF LAURA WOLK, WASHINGTON, DC

    Ms. Wolk. Mr. Chairman, Ranking Member Feinstein, and 
Members of the Committee, my name is Laura Wolk and I am a 
former student and mentee of Judge Amy Coney Barrett. In part 
because of her unwavering support, I am the first blind woman 
to serve as a law clerk on the Supreme Court of the United 
States.
    It is now my immense privilege to appear before you in 
support of Judge Barrett's nomination to that same great 
institution.
    You have heard over the past few days about Judge Barrett's 
judicial qualities, which are beyond reproach. But should you 
confirm Amy Barrett, the country will receive something far 
greater than simply an unparalleled legal mind.
    It will gain the service of one of the kindest individuals 
I have ever known. Her brilliance is matched only by her 
compassion and her integrity is unassailable.
    I am not speaking in mere abstractions here. Rather, I have 
experienced these characteristics firsthand with life-changing 
results. Because I am completely blind, I rely heavily on 
assistive technology to compete on a level playing field of my 
sighted peers.
    Before arriving at Notre Dame Law School in 2013, I worked 
hard to ensure that the university would purchase backup copies 
of the technology I use.
    But upon arrival, I discovered that bureaucratic glitches 
left me without access to that technology and, on cue, my 
personal laptop immediately began to fail.
    Overnight, I found myself struggling to keep up in class, 
falling increasingly behind with each passing hour. I needed 
help, and I needed it fast.
    I had been Judge Barrett's student only for a few weeks, 
but her graciousness and warmth gave me hope that she could 
provide me with that assistance. Even so, I maintained 
relatively low expectations.
    Based on my past experience, I assumed that Judge Barrett 
would simply direct me to the proper bureaucratic channels, 
which could still take weeks if not longer to navigate.
    But Judge Barrett did something altogether different. She 
silently listened with deep attention as I explained my 
situation, giving me the freedom to let down my guard and come 
apart.
    As a disabled person, I am accustomed to acting as if I 
have everything under control, when in reality the world feels 
like it is spinning out from under me.
    But in front of Judge Barrett, I was able to let the mask 
slip and, indeed, to disappear completely. I poured out all my 
concerns, not just about technology and my worries about 
failing classes, but all the burdens I currently carried as a 
disabled woman navigating a brand new environment.
    When I finished, Judge Barrett leaned forward and looked at 
me intently. ``Laura,'' she said, with the same measured 
conviction that we have seen displayed throughout her entire 
nomination process, ``this is no longer your problem. It's my 
problem.''
    I can't capture adequately the relief that washed over me 
at her words. Her offer was rare enough in its own right, but 
even when such offers are extended many, unfortunately, do not 
follow through. It is hard to trust an offer of assistance no 
matter how desperately it is needed or earnestly it is given.
    Not so with Judge Barrett. Anyone who has interacted with 
her knows that she is a woman of her word. She means what she 
says and she says what she means. When she promised to advocate 
for me, she commanded my trust.
    To this day, I do not know what Judge Barrett did to solve 
my problem, itself a testament to her humility. All I know is 
that the technology arrived promptly, which, in turn, allowed 
me to excel and to place me in a position that would eventually 
allow me to apply for a clerkship on the Supreme Court.
    This encounter was the first in which Judge Barrett 
demonstrated the depth of her generous spirit. But it was far 
from the last.
    She has remained a constant source of strength, 
encouragement, and solace as I have pursued professional and 
personal opportunities with no roadmap to guide me.
    Through her mentorship, she has given me a gift of 
immeasurable value, the ability to live an abundant life with 
the potential to break down barriers so that I can leave this 
world a better place than I found it.
    Though I am here today to share with you my story, the very 
best aspect of that story is that it is hardly unique. Those 
who have had the benefit of knowing Amy Coney Barrett 
understand that she possesses a boundless font of energy and a 
radical sense of love that she is ever ready to pour out upon 
those lucky enough to call her teacher, boss, family, and 
friend.
    Judge Barrett will serve this country with distinction, not 
only because of her intellectual prowess, but also because of 
her ability to treat everyone as an equal deserving of complete 
respect.
    As a beneficiary of both of these qualities, I urge you to 
confirm Judge Amy Coney Barrett to the Supreme Court of the 
United States.
    Thank you.
    [The prepared statement of Ms. Wolk appears as a submission 
for the record.]
    Chairman Graham. Thank you.
    Thank you all. I mean, your testimony, in their own way, 
was incredibly compelling and your life circumstances. We 
appreciate you sharing with the Committee whether you were in 
support or opposition to Judge Barrett.
    I just--I really don't have any questions. I am going to 
turn it over to Senator Feinstein.
    For the Committee, if you want to grab a bite, we will 
press on. But I just want to keep going, and we will make sure 
everybody can ask questions that would like.
    Just one editorial comment. Ms. Wolk, I am very impressed 
with what you had to say. My sister is the executive director 
for the Commission for the Blind in South Carolina.
    She is trying to bring about better outcomes, and I just 
have some understanding of the world that you just spoke of, 
and maybe all of us can work together to provide some upper 
game here when it comes to services.
    Senator Feinstein.
    Senator Feinstein. I would like to ask this question, if I 
may, of Crystal Good. I want to thank you for being here and 
sharing your very remarkable story with the Committee.
    You have testified about a very personal decision that you 
made as a teenager to have an abortion. I would like to just 
talk to you a little bit more about it because as you and I 
both know, this is very hard for a girl or for a woman, and the 
personal circumstances are often not known.
    And so I was wondering if you would discuss with us what it 
has meant for you to have that right, that right 
constitutionally, to reproductive care.
    Ms. Good. Thank you, Senator Feinstein.
    I just wanted to say that, you know, I am here today with 
the support and prayers of my pastor, of my friends, and folks 
from the hills and hollers, and my family, including my mom.
    And my mom and I have come a really long way. We have been 
on a very long healing journey to build a strong relationship. 
I know her actions then were not excusable, but today I really 
understand how women like my mom, and men, too, can fall prey 
to a culture of silence in churches and systems, and systems 
that knew what my stepfather was doing and they protected him 
and not me.
    And so, you know, my right to access healthcare is why I am 
here today, and I am speaking from not a place of bitterness 
but to give caution and concern in this nomination that the 
government cannot and should not create barriers to healthcare.
    Thank you.
    Senator Feinstein. Thank you very much, and it is very 
clear that you are a very strong person. I think we all wish 
you well.
    I would like to ask Dr. Bhatti. Doctor--can I ask a 
question?

    Chairman Graham. Yes, ma'am.
    Senator Feinstein. Okay. What would you say to people who 
have excellent healthcare coverage, as is true here for us in 
the Senate, to help us understand how important the ACA is for 
your patients?
    Dr. Bhatti. Well, what I would say to folks with good 
insurance is that we are blessed. I have good health insurance, 
too. We are blessed to be in a position.
    You know, as a society, we sometimes punish people when the 
only mistake that they might have made is not choosing their 
parents wisely, and a lot of my patients fall into that 
category where, you know, they are hard-working people. They go 
to work every day. They try to do their part to contribute to 
society.
    But, you know, their stories don't often get told, and that 
is why I am here today, is to tell their stories and to let 
folks know that, you know, the committee that I am here 
representing and me, as a--I, as an individual, value 
healthcare for all Americans. That is what this is all about is 
making sure that every----
    Senator Feinstein. Could I----
    Dr. Bhatti [continuing]. American has access.
    Senator Feinstein. Could I stop you for a minute?
    Dr. Bhatti. Yes.
    Senator Feinstein. Because what is really important to me 
is, what do you think of the long-term consequences that the 
pandemic will have on this Nation's health?
    Dr. Bhatti. I am very worried about the pandemic. You know, 
we already have had, you know, many, many--217,000 deaths.
    Eight million Americans have contracted COVID. Fourteen 
million Americans have lost their employer-based healthcare 
because they have lost their job since the beginning of the 
pandemic.
    And so we need to take bold action to get the pandemic 
under control in order to save as many lives as possible. I am 
very concerned about our health response at every level of 
government.
    Senator Feinstein. Well, one last question. What do you 
believe the most critical health response is to be beneficial? 
If you could speak a little bit about that and the numbers of 
people and your advice to us.
    Dr. Bhatti. We need to do a better job at the highest level 
of government, starting with the Federal Government on down, 
with testing and contact tracing and providing the resources to 
all the States that they need to do that because the numbers, 
as striking as they are, are a sharp underestimation of what 
the reality actually is because we do not have the capacity at 
the ground level to perform as many tests as we need to know 
just how many Americans actually have COVID and just how many 
people have become sick and have died from COVID.
    So the numbers are a sharp underestimation. So anything 
that the Federal Government can do to empower each and every 
State to get more accurate counts, and then also to lead by 
example where we need--you know, masks should not be a partisan 
issue.
    Washing hands should not be a partisan issue. Social 
distancing should not be a partisan issue, and we need every 
elected Member of Congress to lead by example by engaging in 
acts of public health that we need every American to engage 
in----
    Senator Feinstein. Such as?
    Dr. Bhatti [continuing]. In order to prevent the spread 
of----
    Senator Feinstein. Such as what kind of acts of public 
health?
    Dr. Bhatti. I mean basic things, like having every Member 
of Congress commit to wearing a mask. Every Member of Congress 
commit to social distancing, commit to not going into indoor 
places with more than 10 people.
    You know, not holding large rallies where people aren't 
wearing masks standing right--side by side next to each other.
    Every Member of Congress, I believe, as a physician, has an 
obligation to lead by example, and that is what is going to 
help my patients the most is when they see elected officials 
that they trust leading by example and participating in or 
taking part in simple public health measures to keep everybody 
safe.
    Senator Feinstein. Thank you very much, Doctor.
    Dr. Bhatti--I will turn it over to Senator Kennedy--does 
that include protests?
    Dr. Bhatti. I beg your pardon, Senator?
    Chairman Graham. Would that include mass protest?
    Dr. Bhatti. Any large gathering of people.
    Chairman Graham. Would that include rioting?
    Dr. Bhatti. Well, sir, I don't support rioting, if that is 
what you are asking me. But any----
    Chairman Graham. Well, I just want to make sure. Thank you.
    Senator Kennedy.
    Senator Kennedy. Thank you, Mr. Chairman. I just wanted to 
thank all of our witnesses for taking the time to come by. I 
particularly want to thank Professor Prakash. Am I saying that 
right?
    Professor Prakash. Great.
    Senator Kennedy. Thank you, Professor.
    You did me a favor. You may not remember it, but one of my 
colleagues in my office is sitting behind me, Hannah Freyer, 
and you recommended Hannah to me, and I wanted to thank you for 
that. She has made a--you taught her well. She has made a 
substantial contribution to my office.
    Also, two of your colleagues, Paul Stephan and Dan Ortiz, 
are friends of mine. We went to school together though at 
different schools. Paul and I were together at one school and 
Dan and I were together at another, and please remember them to 
me. They are, in a word, brilliant and they are good mates. So, 
tell them I said ``hi.''
    Professor Prakash. Certainly.
    Senator Kennedy. And thanks again to everyone.
    Senator Feinstein [presiding]. Let me see. Is there another 
Senator? Senator Durbin.
    Senator Durbin. Here is one. Thanks, Senator Feinstein.
    I want to show you a photo of Nate Lau. I have produced a 
photo of an Illinoisan every day. In this one, Nate--the 
photo--is 8 years old. Good looking young man.
    [Poster is displayed.]
    Senator Durbin. It's the eighth anniversary of a surgery 
that saved his life. Diagnosed with biliary atresia. He ended 
up needing a liver transplant. Thank you, Lurie Children's, a 
wonderful hospital.
    Medical care cost more than a million bucks in the first 
year of his life and, of course, it continues. He is in the 
third grade. He enjoys soccer, video games, and playing with 
his younger sister.
    He, of course, now has a pre-existing condition for the 
rest of his life, and his parents tell me that lifetime limits 
might have cost him his life, period.
    So, when we talk about the future of the Affordable Care 
Act, and Doctor, thank you for reminding us, remember this 
little fellow. What a good looking young man he is.
    So, I am going to make a confession here that may not sit 
well with some of my colleagues, but when someone tells me 
check the box, I am an originalist, it isn't enough for me. It 
doesn't tell the whole story. In fact, it doesn't tell me much.
    Let me read to you what the Mayor of Chicago, Lori 
Lightfoot, who is a friend, said a couple days ago in a news 
conference.
    They asked her if she was an originalist. Here is what she 
said:
    ``You ask a gay Black woman if she is an originalist? No, 
ma'am, I am not. That Constitution didn't consider me a person 
in any way, shape, or form because I'm a woman, because I'm 
Black, and because I'm gay.
    ``I'm not an originalist. I believe in the Constitution. I 
believe it's a document the Founders intended to evolve. What 
they did was set the framework for how our country was going to 
be different from any other.
    ``But originalists say that, let's go back to 1776 and 
whatever was there in the original language that's it. That 
language excluded over 50 percent of the people living in 
America today. So no, I'm not an originalist.''
    So, I don't take any comfort when people proclaim, ``I'm an 
originalist.'' Trust me, I am going to look at this 
Constitution and, having taken a good hard look at it, don't 
worry. We will find the wisdom in these words.
    And we had a case here, which was very important, and we 
talked about it over and over each day, and that was the Kanter 
v. Barr case, because Judge Barrett took the time to write a 
lengthy, lengthy dissent and she, being an originalist, took 
this adventure in history. She went back 400 years. Senator 
Kennedy, 400 years. There wasn't even a Louisiana maybe, at 
that point.
    Four hundred years to find some guidance. What she missed 
in her conclusion is what is happening 400 yards from where she 
lives, where crime guns are coming across the border from the 
State of Indiana into the City of Chicago and killing innocent 
people.
    The notion that we would somehow drop our guard and make it 
easier for people who are convicted felons to own firearms just 
doesn't make sense from where I am standing, and I don't know 
if going back to the time of the British decisions on what to 
do with flintlocks is really much guidance when it comes to the 
reality today.
    Ms. Clarke, if you are still on board, would you comment on 
Mayor Lightfoot's version of originalism and her take on it?
    Ms. Clarke. I have grave concerns about Judge Barrett's 
commitment to originalism and textualism as a theory of 
constitutional interpretation.
    It purports to rely on the understanding of our 
constitutional text at the time when the language was adopted, 
which is not practical in the 21st century, and it can lead to 
a high degree of speculation about the Framers' objective 
understanding.
    But, you know, I would like, if I could, Senator, to read a 
quote from Justice Kennedy:
    ``The nature of injustice is that we may not always see it 
in our own times. The generations that wrote and ratified the 
Bill of Rights and the Fourteenth Amendment did not presume to 
know the extent of freedom in all of its dimensions and so they 
entrusted to future generations a charter protecting the rights 
of all persons to enjoy liberty as we learn its meaning.''
    I think that Judge Barrett's strict adherence to 
originalism and textualism stands to turn our country back 
decades and runs the risk that we will exclude from the 
Constitution promise African-American, women's rights, LGBTQ 
rights, and more.
    Senator Durbin. Isn't it interesting, Ms. Clarke, that many 
of the questions and issues before us still relate to the 
evolution of thinking beyond the original Constitution as it 
related to African Americans, for example, and particularly as 
it relates to women today?
    We are going through this. We are in the middle of this, 
and the folks--and the Constitution, which I swore to support 
and defend, didn't get those two aspects right. Women didn't 
have a right to vote and African Americans weren't even counted 
as full citizens, let alone having the right to vote. We are 
still debating that many hundred years later.
    Thank you, Mr. Chairman.
    Chairman Graham [presiding]. Thank you, Senator Durbin.
    Anyone on our side? Senator Lee.
    Senator Lee. Thank you, Mr. Chairman.
    Judge Griffith, I would like to start with you, if I could. 
In addition to being a judge on the U.S. Court of Appeals for 
the D.C. Circuit, you have also been a professor, and you have 
taught a course for a number of years at Stanford Law School 
regarding the unique, distinct role of the Article III judge.
    If I understand correctly, you have also started for the 
last few years teaching that same course at Harvard and you 
will be teaching that at Harvard and the University of Virginia 
this year.
    What do you tell your students are some of the most 
important lessons that you have learned as an Article III 
judge?
    Judge Griffith. Yes. Thank you very much.
    The danger is if I give you the full answer and the 
students are out there they will do better on the exams by 
hearing what I think. Just kidding.
    No, we--I came upon this course because I wanted to have a 
better understanding of what my role was as a judge. What am I 
supposed to do under the Constitution? What role am I supposed 
to play?
    And if I could just tell a quick story that I think 
captures what I have learned both from being a judge and then 
from the courses and hearing the interaction with the students.
    I will tell a story. It was--it happened the day after I 
was confirmed by the Senate for my seat on the D.C. Circuit. It 
was a happy day for me.
    I was in my office. I was the general counsel of Brigham 
Young University at the time, and I was the recipient of many 
congratulatory phone calls from people from around the country 
who I had known and worked with before.
    One was from a fellow I was--he and I had been at the same 
law firm in Washington, DC, and he had clerked for a 
distinguished member of the D.C. Circuit who has long since 
passed away and then went on to clerk on the Supreme Court.
    And so, he wanted to give me some advice about being a 
judge. He said, are you open for advice? And I said, boy, am I. 
I am teachable.
    And he said, I will tell you what I was told the first day 
in my judge's chambers to the D.C. Circuit. He sat me down and 
he said, here is how we go about our job. The first thing that 
we do is we learn the facts of the case as best we can.
    These are real people. They have real struggles. They 
deserve to know that we know who they are, that we know the 
challenges they face. They deserve that. And so we have to 
spend a lot of time to learn their circumstances.
    So, the next thing that we do is we think long and hard and 
deep about the fair result, the just outcome, the equitable 
disposition, and once we figure that out, we go find law to 
support our decision.
    Now, the purpose of the call was a congratulatory one. It 
was not to engage in a discussion of the role of the Article 
III judge.
    But I took a vow that I would do my level best to always 
heed the first part of that advice. Always heed the first part 
of that advice: That these are real people who have real 
struggles, and we need to understand them.
    I took a vow that I would never follow the last part of his 
advice. Why? Because it is the American people who get to 
decide what is fair and just and equitable, and they express 
that through their politically accountable representatives, 
through Members of Congress. They do that through legislation. 
They do that through the Constitution of the United States.
    I was not appointed to decide--to take my own views of what 
is fair and just and equitable and use them to resolve the 
case. That is not what our system allows.
    Maybe that would be a perfectly good way of running a 
government. But that is not--that is not the system that our 
government was created to do.
    I am an originalist. I am a textualist. There are many 
political progressives who are originalists. One is Professor 
Akhil Amar, who is a great originalist scholar and is a 
political progressive.
    Professor Amar, in his book, the ``Constitution: A 
Biography,'' which I highly recommend, says something, I think, 
quite profound.
    The most fundamental--I won't quote him but I will 
paraphrase him--according to Professor Amar, the most 
fundamental liberty protected by the Constitution is the right 
of we, the people, to set the rules by which the government--by 
which our society is run, and we do that through politically 
accountable representatives.
    We don't do that through judges. Our job as a judge is to 
be a faithful agent to we, the people, as they express their 
will through law.
    The Constitution has a very complicated lawmaking process. 
In the case of statutes, it is bicameral passage and 
presentment to the President. In the case of amendments to the 
Constitution, it is two-thirds passage in Congress, three-
fourths ratification by the States. It is a very complicated 
process.
    If you note in that process no description for the role----
    Chairman Graham. Judge, we need to wrap it up.
    Judge Griffith. Okay. There is no role for a judge in this. 
So that is the lesson we learn.
    Thank you, Mr. Chairman.
    Senator Lee. Thank you very much, Judge.
    Chairman Graham. Thank you.
    Anyone over here?
    Senator Blumenthal, yes, sir.
    Senator Blumenthal. Judge Griffith, I was not the one 
responsible for interrupting you. Just----
    Chairman Graham. That was me, Judge. I apologize. We were 
going over. And I know you didn't have a clock. So----
    Senator Blumenthal. I mention that because Judge Griffith 
sat on a case very recently where I was present as the 
plaintiff in Blumenthal v. Trump, and thank you, Judge 
Griffith, for being with us and all the witnesses who are here 
today for giving your time to this very, very important 
proceeding.
    I want to ask particularly Ms. Clarke, because there is 
such a strong racial justice movement in this country now. We 
are in the midst of a health crisis and, obviously, an economic 
emergency. But the racial justice movement is so deeply 
important.
    I asked Judge Barrett about the issue of gun violence 
prevention, and I brought with me the story and into the room 
the voice and face of Janet Rice, who lost her son, Shane 
Oliver, in downtown Hartford.
    They are Black. I also had the voice and face of Kristin 
and Michael Song, who lost their son, Ethan, and Natalie 
Barden, who lost her brother. Every community, every part of 
the country is affected by the scourge of gun violence.
    Janet Rice lost her son, Shane Oliver, in a shooting, 
probably no fault of his, certainly, none of hers. I wonder if 
you could talk about the need for sensible, common-sense gun 
violence preventive measures.
    Judge Barrett has taken the position that the Second 
Amendment should give felons, a class of felons, without any 
legal support in the circuit courts, the right to possess 
firearms.
    I am extremely concerned about the effects of that kind of 
approach to common-sense measures like Connecticut has and 
other States around the country that protect everyone: 
background checks and emergency risk protection orders, safe 
storage laws, Ethan's Law, as it is known in Connecticut 
because the Songs' son, Ethan, was killed when a gun that 
should have been safely stored was available to two teenagers 
who were, in effect, playing with it.
    And perhaps tell me about the effects of striking down 
those kinds of laws on communities of color around the country 
and on the country as a whole.
    Ms. Clarke. Thank you for that question, Senator 
Blumenthal.
    We have examined her record very closely with respect to 
the Second Amendment and Judge Barrett's Second Amendment 
jurisprudence reflects an originalist viewpoint. Again, we see 
her originalist and textualist outlook really shaping her view 
of the law, and her record suggests that she would be inclined 
to make it easier to expand individuals' rights to obtain and 
use guns and that it would be more difficult for States to 
impose reasonable restrictions on the purchase and use of guns.
    And I do think that this is a very real issue for our 
country. We have been through a spate of mass shootings and we 
also know that access to guns has devastating impacts on 
vulnerable communities including communities of color.
    So, I have deep concerns about her jurisprudence in this 
area.
    [Audio malfunction.]
    Senator Blumenthal. Now, I should mention, obviously, 
Newtown was in--the Newtown Massacre in the Sandy Hook 
Elementary School affected a largely white community. Natalie 
Barden lost her brother. The grief still stays with her in that 
killing of 20 beautiful five-, six-, and seven-year-olds, and 
six wonderful teachers.
    And Kristin and Michael Song lost their son, Ethan, when he 
was playing with a firearm because it wasn't safely stored. 
They have championed a law in Connecticut. It is called Ethan's 
Law there, and I have introduced it here, to require safe 
storage.
    Emergency risk protection orders have been adopted by at 
least 15 States--Connecticut has one, that keep guns out of the 
hands of dangerous people if a judge finds that they are 
dangerous to themselves or others.
    These kinds of common-sense measures, I think, would be in 
jeopardy with Judge Barrett's approach to the Second Amendment. 
Do you agree?
    [No response.]
    Senator Blumenthal. I don't know whether we still have Ms. 
Clarke.
    [Pause.]
    Chairman Graham. I think the system--the system went down 
again and----
    Senator Blumenthal. Oh, I am sorry to hear that you are not 
there, Kristen. But maybe we can pose that question to you 
either in writing or later in the hearing.
    Thank you so much, Mr. Chairman.
    Chairman Graham. I will tell you what. Why don't we do 
this? Why don't we break for 30 minutes for lunch and give them 
a chance to fix it.
    Senator Blumenthal. Thank you very much.
    [Whereupon the Committee was recessed and reconvened.]
    Chairman Graham. Thank you to all our witnesses for being 
patient.
    All yours, Senator Blumenthal.
    Senator Blumenthal. Thank you, Mr. Chairman. I think I had 
about a minute, maybe.
    Chairman Graham. You have got 5 minutes.
    Senator Blumenthal. Thank you.
    Chairman Graham. Start all over again.
    Senator Blumenthal. Wonderful.
    Chairman Graham. I do not know what it is about you, but 
every time we get there, the system breaks.
    [Laughter.]
    Chairman Graham. So, you have 5 minutes.
    Senator Blumenthal. Thank you.
    I want to just finish with Ms. Clarke, and I will restate 
the question--if we have Ms. Clarke. I hope we do. Are you 
there?
    Ms. Clarke. Yes, I am, Senator.
    Senator Blumenthal. Wonderful. Ms. Clarke, I will restate 
the question maybe more succinctly and clearly. My impression 
about originalism is that it is often used as a smoke screen by 
activist judges who want to legislate from the bench and 
substitute their own judgments for the legislature's. My 
concern, one of them, about Judge Barrett is that her opinion 
in Kanter indicates an approach, a very activist one, to the 
Second Amendment that would very possibly strike down common-
sense gun violence measures such as background checks, 
emergency risk protection orders, safe storage laws like 
Ethan's law in Connecticut, and other measures that are 
designed to stem and stop gun violence.
    I am particularly concerned because of Janet Rice, who is 
still grieving her son, Shane Oliver; Natalie Barden, who is 
still mourning for her brother, who was killed in Newtown; and 
the Songs, Kristin and Michael, who still have a hole in their 
heart for their son, Ethan. They championed Ethan's law 
courageously in Connecticut. We are a safer State because of 
the victims and survivors of gun violence, whether Newtown or 
downtown Hartford, as with Janet Rice, and all across the 
State, often in communities of color, but literally every 
community, because every neighborhood, every family, every 
community is vulnerable to the scourge and epidemic of gun 
violence. It is a public health menace.
    Let me ask you about that judicial philosophy, originalism, 
as applied to the Second Amendment. Do you share my concern 
that it could lead to striking down those laws that State 
legislatures and hopefully Congress one day will enact to make 
America safer?
    Ms. Clarke. Thank you, Senator Blumenthal. Very briefly, in 
our analysis of Judge Barrett's record, her Second Amendment 
jurisprudence reflects an originalist approach, and we believe 
that her orientation is one such that it would be more likely 
that she would seek to expand an individual's right to obtain 
and use guns and that she would be inclined to uphold--that she 
would likely resist restrictions on the purchase and use of 
guns.
    We looked at her decision in Kanter v. Barr very closely. 
We note that the opinion that she wrote, which was offered 
along with two other judges, is one in which some observers 
have found to be in conflict with that of every other appellate 
court that has addressed the issue that was at stake in Kanter. 
So I am deeply concerned, Senator, that she would put her thumb 
on the scale of providing more access, easy access to guns in 
our country.
    Senator Blumenthal. Thank you very much, Ms. Clarke.
    I would like to turn to Ms. Good. You describe in your 
testimony being a survivor of sexual abuse, and you state that 
you are the person you are today--at 16 years old, because you, 
quote, ``had access to an abortion,'' end quote. You also may 
have heard my asking Judge Barrett if she thought, as her legal 
position, Roe v. Wade was correctly decided, including in cases 
where pregnancy was the result of sexual abuse, and I brought 
to her the story of Samantha, who was a rape victim and 
survivor, became pregnant, and had an abortion.
    How did you feel knowing that Judge Barrett simply would 
not answer that question about whether Roe v. Wade and Griswold 
v. Connecticut were correctly decided?
    Ms. Good. Well, Senator, thank you for the question. You 
know, as a survivor, it is deeply, deeply disturbing. And, you 
know, it just makes me think, you know, no one cared about 
consent when I was being sexually abused, and all young people 
deserve the right to consent, autonomy, and dignity. And I am 
here to stand against this nomination.
    Thank you.
    Senator Blumenthal. Thank you very much. Thanks, Mr. 
Chairman.
    Chairman Graham. Thank you.
    Senator Hirono.
    Senator Hirono. Thank you, Mr. Chairman.
    Mr. Chairman, I have a letter from the National Education 
Association, which represents 3 million educators serving 50 
million students. They are urging the Senate to focus on a 
COVID-19 relief bill and not, to quote the letter, ``rush to 
confirm President Trump's nominee, Amy Coney Barrett, before 
election day, when that is not what the American people want.'' 
I ask unanimous consent to enter this letter into the record, 
Mr. Chairman.
    Chairman Graham. Without objection.
    [The information appears as a submission for the record.]
    Senator Hirono. Thank you.
    I have two questions for Ms. Clarke, so if you can sign on. 
Ms. Clarke, the Supreme Court's Shelby County decision gutted 
the preclearance provision of the Voting Rights Act, which 
required jurisdictions with a history of voting discrimination 
to get approval for changes to their voting laws. After Shelby 
County, over a dozen States passed restrictive voting laws.
    During the hearing I asked Judge Barrett whether voter 
suppression or voter discrimination currently exists. She 
refused to answer and pointed out that the Supreme Court did 
not address Section 2 of the Voting Rights Act in Shelby 
County. But the Supreme Court has recently decided to take up 
this issue.
    Ms. Clarke, unlike the preclearance provision, Section 2 
puts the burden on those who are challenging the voting law to 
show that the law would result in, quote, ``a denial or 
abridgment of the right of any citizen to vote.'' This kind of 
burden shifting makes it hard to prevail. Wouldn't you agree, 
Ms. Clarke?
    Ms. Clarke. Yes, Senator, I completely agree. Section 2 is 
not a substitute for the important protections that have long 
been afforded by the Section 5 preclearance provision.
    Senator Hirono. I think everyone should understand what 
burden shifting really will result in. There has to be 
basically a case-by-case bringing of these lawsuits to 
challenge whether or not the law passed by a State actually 
suppresses the vote. So that is a pretty tough burden. Whereas, 
the preclearance provision basically required the jurisdictions 
who have to comply with that provision to show that their 
provision did not suppress votes. Isn't that correct?
    Ms. Clarke. That is correct, Senator. And, in addition, 
Section 2 litigation has proven historically to be more costly, 
more time-intensive, and more burdensome.
    Senator Hirono. Yes, and I think that the Supreme Court, in 
making that 5-to-4 decision, should have predicted that that 
was exactly what was going to happen, and they certainly should 
have predicted that a lot of States would begin to pass all 
kinds of laws that would have the effect at least of 
suppressing votes, especially of minorities and Blacks.
    Another question for you. I know you reviewed Judge 
Barrett's record, including her cases on the Seventh Circuit. I 
did, too, and I found two of her cases relating to 
discrimination in the workplace particularly concerning. The 
first was EEOC v. AutoZone, where Judge Barrett voted to not 
rehear en banc a panel decision that in essence approved a 
separate but equal arrangement. The other was Kleber v. 
CareFusion Corporation, where Judge Barrett joined an opinion 
that effectively approved of age discrimination against job 
applicants.
    Can you speak in a little more depth why the Lawyers' 
Committee was concerned about Judge Barrett's record on workers 
and civil rights?
    Ms. Clarke. Thank you, Senator. In the area of workers' 
rights that we examined, Judge Barrett has demonstrated an 
inclination to side with corporations and with employers over 
employees. We are deeply concerned about the EEOC v. AutoZone 
case where Judge Barrett essentially, along with four other 
judges, refused the Federal Government's request for a full-
panel review of a case involving an employer, here AutoZone, 
which chose to intentionally segregate employees on the basis 
of race. They assigned Black and Latino employees to AutoZone 
locations based on race, and they did so explicitly. And the 
lower three-judge panel found that this was not racial 
segregation because people were still paid the same and 
received the same benefits, but the outcome here is deeply 
disturbing. We do not need a return to an era in which we 
tolerate intentional racial segregation in any context of 
society.
    We are also deeply concerned about Smith v. Illinois 
Department of Transportation, where Judge Barrett authored a 
decision holding that a Black traffic patrol driver failed to 
make a case that he was fired in retaliation for making 
complaints of racial bias. In this case the worker was subject 
to racial slurs. His co-workers used the N-word on multiple 
occasions. And while the Judge recognized that this was a 
racial epithet, she did not find that there was a sufficient 
basis to find that he was subject to a hostile work 
environment.
    When you look at the sum total of Judge Barrett's record in 
the Title VII context, it raises grave concerns about her 
willingness to protect victims of discrimination in the 
workplace and seems to make clear her orientation to protect 
the rights of corporations and businesses.
    Senator Hirono. If I may, Mr. Chairman? So in the case that 
was an overt race-based kind of decision, shouldn't that have 
been a per se violation?
    Ms. Clarke. I agree, Senator, but, you know, we looked at 
her record, and it reflects a pattern. And I think that the 
pattern that we see across both of these cases indicates a 
judge who would not be inclined to enforce Title VII of the 
Civil Rights Act, one of our Nation's most important Federal 
civil rights laws, when it comes to protecting workers in the 
workplace. I have every reason to believe that she is somebody 
who would side with corporations and businesses.
    Senator Hirono. And already we have a Supreme Court that, 
studies have shown, already is protecting corporate interests 
over individual rights.
    Thank you.
    Chairman Graham. Senator Booker.
    Senator Booker. Thank you very much. I want to thank my 
more senior Senator and friend, Chris Coons, for yielding to 
me. It is generous of him. Thank you.
    I want to thank all the witnesses, first and foremost, 
extraordinary----
    Chairman Graham. I think it is more that I ignored him than 
anything else.
    [Laughter.]
    Chairman Graham. I did not see him over there.
    Senator Booker. I appreciate that. I want to thank all the 
panelists. It has really been extraordinary to hear from all of 
you, frankly, and Crystal Good really moved me with her 
testimony, as did Stacy Staggs. I am thankful to Ms. Wolk. I 
just want to thank you for coming in and being around all these 
people and their hot air amidst a pandemic. It means a lot to 
me.
    Professor Prakash, I would thank you, as well, but I am 
still mad that you brought up my classmate, Noah Feldman, in a 
Supreme Court hearing, as I am mad at the Honorable Griffith 
for--I thought I could get through a Supreme Court hearing 
without hearing about my Con Law professor, Akhil Amar, but yet 
I did not make it--this close.
    I want to focus my questioning on Ms. Clarke, if I can. I 
want to thank you for your really important testimony. So I 
talked a lot about a lot of concerns around race. We are 
obviously in the middle of one of our larger racial reckonings 
in our country's history. I started a lot of my questioning 
yesterday about criminal law, and I am wondering maybe if you 
could just start grounding a lot of my concerns in actual 
writings of hers, and perhaps you could talk about Miranda 
first, her writings on Miranda.
    Ms. Clarke. Thank you, Senator Booker. We are at an 
interesting moment. This nomination arises at a moment where 
people are protesting racial injustice and unconstitutional 
policing practices. And in our examination of her record, we 
looked very closely at one of her articles where she talks at 
length about Miranda, the Miranda doctrine, the doctrine that 
requires that officers read you your rights when you are 
accused of a crime. And, in her writing, she has described the 
Miranda doctrine as an example of, quote, ``the Court's choice 
to overenforce a constitutional norm,'' that she says goes 
beyond constitutional meaning. And she suggests that Miranda 
warnings throughout time have inevitably led to the exclusion 
of evidence, even when some confessions were freely given.
    I am greatly concerned that a Justice Barrett on the 
Supreme Court would mean a Court that would be more inclined to 
chip away at the constitutional rights of those who are accused 
of crimes. And we know that our criminal justice system is 
disproportionately composed of Black people and people of 
color, and so this is an area of great concern.
    Senator Booker. And the history of African Americans in the 
criminal justice system being wrongfully convicted is pretty 
staggering, even up to recent months.
    Ms. Clarke. That is correct, Senator. We also know that 
racism infects virtually every stage of our criminal justice 
system, from who gets stopped on the street to lengths of 
sentences to who gets the death penalty. And those are the 
kinds of cases that routinely come before the Court. And so, in 
many respects, this is a life-and-death issue for Black people 
and people of color who are subjected to punishment at the, you 
know, highest levels in our criminal justice system.
    Senator Booker. And there is a lot written about this. 
There are a lot of studies about how African Americans, in 
particular, but people, period, have been churned into a system 
regardless of innocence or guilt. In fact, you heard me riff 
off a whole bunch of well-read books, even now by the general 
public. You are familiar with one, ``Why Innocent People Plead 
Guilty.'' Correct?
    Ms. Clarke. Yes.
    Senator Booker. Yes, and it is this book that documents how 
we have a criminal justice system--it is no longer even trials. 
We have gotten to a point now that 98 percent of our criminal 
convictions are done by plea bargain.
    Are you familiar with example after example--I would 
imagine, as I am, dozens and dozens in my time as mayor--of 
young people caught up in the criminal justice system that 
plead out just simply to get out of jail. Correct?
    Ms. Clarke. Yes, and we also are deeply familiar with the 
resurgence of debtors' prisons, which entangle poor people who 
are disproportionately people of color in the criminal justice 
system merely because of their poverty.
    Senator Booker. Right. And I want to ask--end with a 
question if I will get a little bit of a grace period here. The 
first time I visited Rikers Island, visiting youth lockup, Ms. 
Clarke, I was stunned, and I am embarrassed to say--I was 
already mayor of the City of Newark--that I was there thinking 
I was visiting people who had been convicted of crimes.
    I met with a whole bunch of teenage kids, and I asked them 
how long they had been in for, and they were like 6 months, 8 
months, a year. I still remember 18 months was one of them. And 
I said, ``Well, what have you been convicted of?'' And they all 
looked at me, and saying, ``We have not been convicted.'' And 
these were people in for relatively minor accusations where 
they were stuck within the criminal justice system that led 
Bryan Stevenson, the quote I used yesterday of his, that we 
have a system that ``treats you better if you are rich and 
guilty than if you are poor and innocent.''
    This is not something that is an occasional miscarriage of 
justice. These go on in thousands of cases in every city in 
America where you see young people being churned into the 
system, being put into solitary confinement, which is still 
legal in most States, which psychological professionals call 
``torture.'' Then they are let out of prison now having those 
deeply psychological effects, still often not convicted of 
anything. And this is rife within the system. And to say that 
some of these basic protections like Miranda are the 
oversecuring of rights, to me, is an astonishing lack of 
knowledge about what actually goes on in our criminal justice 
system every single day. And to sit on the highest court in the 
land and not know about what anybody who works in the criminal 
justice world--I have seen some Federal judges break down in 
tears about having to follow mandatory minimums. I have seen 
prosecutors come to me and say, ``There has got to be a 
different way.''
    But to see that we are--the concern I had about not being 
familiar with some of these basic studies coming from--and you 
know this. I will not name the people on the right, the 
organizations--some of them have been vilified at this very 
hearing--that I found common cause with to try to correct some 
of these tragedies.
    Could you just finish just saying--is anything I am saying 
overstating the fact?
    Ms. Clarke. No, Senator, and the most notorious example of 
the crisis that you have just described is Kalief Browder, who 
was held for almost 3 years at Rikers Island because he could 
not post bail because he was poor. He was accused of stealing a 
backpack. He was never actually brought forward for trial, and 
he ultimately took his life. He committed suicide because of 
the trauma that he experienced at Rikers. He was held in 
solitary confinement for much of his time. And so Justice 
Barrett's record on race and criminal justice matters and her 
writings on Miranda provide a powerful road map into how she 
would likely handle criminal justice cases that come before the 
Supreme Court. This is in large part another reason why we 
oppose her nomination.
    Senator Booker. And so I just would say in conclusion to 
the Chairman, we sit in a country where we are comfortably 
sitting here right now while children are being tortured in 
solitary confinement, right now, disproportionately Black, 
disproportionately poor. We have a system where Blacks are, as 
I quoted the data, disproportionately stopped by police, even 
though they find, traffic stops, that white people actually are 
found with drugs more than Black people when they are stopped. 
You could go through every part of the system, from station 
house adjustments all the way through to sentencing, treatment 
in prison, perceptions of threat that are often--deeply affect 
whether somebody gets probation or parole. And then the 
collateral consequences if somebody is poor now, that when they 
get out of prison, their collateral consequences they face are 
much different than someone who is wealthy who comes out of 
prison.
    So, it just so frustrates me that we have a national shame 
that our criminal justice system is not just, that we do not 
have equal justice under the law, that we are a Nation that 
still engages in things that other countries call ``torture'' 
to people in our prisons, and that we do not, number one, have 
a sense of urgency to do something about it; number two, 
continue to put people on the highest court in the land who are 
not even familiar, it seems, with the scholarship around this 
issue.
    Thank you.
    Chairman Graham. Just a few brief comments, and we will 
finish with Senator Coons.
    Bail reform, I think there is some legislation to abolish 
cash bail. I think Senator Rand Paul maybe is on it and Senator 
Harris. I have tried to work with Senator Booker. I find you 
very knowledgeable in trying to seek common ground. You have 
seen States that basically abolish bail and drop somebody off 
in the morning, and they are back out on the streets in the 
afternoon committing violent crimes. And you have the situation 
about some young man, 3 years for stealing a backpack. I get 
it. I just--there is the other side of the story. To the extent 
that we can create a parole system in the Federal system, count 
me in.
    You see, our Federal system does not have parole. The First 
Step Act is a review of sentences for nonviolent offenders, 
but, you know, Senator Lee, you have been really good on this. 
I would like to take a shot in trying to see if we can come up 
with some pilot program for parole, because I went to a 
facility in South Carolina where a man had been there about 35 
years. He was in his fifties, and every guard said he is here 
for no reason. And the guard said, ``This guy over here, if he 
ever gets out, he will kill the first person he meets.''
    So, I would like to have a system that addresses what you 
are talking about but that does not lead to a catch-and-release 
in terms of the violent offenders.
    Senator Booker. I just want to say I welcome that.
    Chairman Graham. Sure.
    Senator Booker. Every prison I visit, we--a lot of 
conversation about faith, Matthew 25 really drives me: ``Did 
you visit me in prison?'' So I try to visit prisons. Every 
warden, toughest wardens, you name it, I always ask them that 
question: ``Are there people here that do not belong?'' And 
they look at me and they say, ``Absolutely''----
    Chairman Graham. ``Without a doubt.''
    Senator Booker [continuing]. ``Absolutely.''
    Chairman Graham. And they say, ``Would parole help?'' And 
they'd said, ``Yes.'' I would be the first one to go to the 
parole hearing.
    Senator Booker. Yes.
    Chairman Graham. Senator Coons.
    Senator Coons. Thank you, Mr. Chairman. And to my colleague 
from New Jersey, as you well know, Cory, it was my own father's 
volunteer work in prison ministry that really shaped my young 
life. My first visits to our State prison were when I was in 
middle school, and my dad was going to visit a Bible study 
group and brought a convicted murderer home on parole weekends 
to our house, which really shaped my sense of what it means to 
be willing to take risks for those who the rest of society has 
given up on.
    The First Step Act, which you played a central role in, as 
was graciously recognized by the Chairman, previously was meant 
to be a first step along a long journey, and we have a lot of 
important work we can and should be doing in addressing the 
ways in which our criminal justice system is profoundly unjust. 
We are months and months past the point where the people of 
Delaware, at least, expected action on reform efforts here 
legislatively to deal with racial inequality. And that should 
be on our agenda every day.
    It was the judge for whom I clerked on the Third Circuit 
who first took me to a Federal prison. She made sure that every 
one of her clerks went to a Federal prison, met with Federal 
prisoners, had an understanding of what the consequences were 
of the decisions that we were contributing to. And I frankly 
think everyone who serves in this role should have that 
insight, both into victims' families and the consequences of 
crime, but also into what incarceration means, what things like 
cash bail and solitary confinement mean, particularly to young 
people. I have had a bill on solitary confinement of juveniles 
for a number of years. We should work on this. But let me get 
to questioning the panel. Forgive me. You touched a point of 
passion there, Senator Booker.
    If I could just briefly, since I know I am the last 
questioner today, Dr. Bhatti, from Lansing, Michigan, if I 
might, what kind of--two things. Rudy Giuliani, in speaking to 
an event about COVID, recently said, ``People don't die of this 
disease anymore.'' Is that accurate? And what, if any, kind of 
meaningful relief can Congress provide that would actually help 
your clinic in Lansing, Michigan, and help those in public 
health respond to this pandemic?
    Dr. Bhatti. Thank you, Senator, for the question. I think 
flatly the answer to your first question is no, it is not 
accurate. People are still dying every day. In fact, a thousand 
Americans each day are dying because of COVID. And there is a 
lot that Congress could be doing to help my patients. You know, 
we could be potentially expanding unemployment, you know, 
giving people cash assistance. My patients are having 
difficulty paying rent. I have patients who are finding 
difficulty even getting food to eat every day. I have patients 
with difficulty affording medications. And so my patients are 
facing real-life challenges, and they cannot afford to wait for 
an election, and they cannot afford for Congress to continue 
with the hyper-partisanship that we are seeing. They need 
action now, and that is one of the main reasons I came today, 
was to advocate on behalf of my patients, specifically, you 
know, giving people access to healthcare. Anybody who has a 
COVID-related illness should not have to worry about going 
bankrupt because of that illness. And then making sure that we 
protect those people moving forward so that they do not lose 
their health insurance at any point in the future because of 
their pre-existing conditions.
    So, those are just some of the things that I think could be 
done to help protect my patients and help them get a leg up.
    Senator Coons. Thank you, Doctor. It is my hope that we 
will find a path in these last 3 weeks before the election to 
actually deliver a meaningful bipartisan package. It should be 
robust, and it should provide resources, particularly for 
grass-roots medical clinics.
    Ms. Staggs, I appreciated your advocacy around the 
healthcare of your children. You have spoken about how the 
Affordable Care Act is vital to keeping your children healthy 
and safe. My colleagues have said over and over again they want 
to repeal and replace the ACA. One of my challenges has been 
finding the replacement plan. Can you tell me what their 
replacement plan is for the ACA?
    Ms. Staggs. Thank you. Can you hear me?
    Senator Coons. Yes, I can--now I cannot.
    [Audio malfunction.]
    Ms. Staggs. A few weeks ago, President Trump was here in 
Charlotte and signed an Executive order that he said would 
protect pre-existing conditions. First of all, the Affordable 
Care Act is a whole heck of a lot more than protections against 
pre-existing condition exclusions. Second of all, the Executive 
order that was signed, per White House Counsel, has no legal 
effect. It was a great idea, but I have to tell you, like you, 
I remain all ears and incredibly eager to hear and see and read 
and consider an effective replacement plan.
    I know that my own Senator, Senator Tillis--is he in the 
Chamber today?
    Senator Coons. He is no longer here. He was earlier.
    Ms. Staggs. Okay. I know that Senator Tillis has put forth 
what is called a ``PROTECT Act'' that uses the term ``pre-
existing conditions,'' but in effect does not meet the standard 
that we currently have with the Affordable Care Act. So I would 
just say to that, that the American people are on pins and 
needles and feeling very anxious for whatever replacement plan 
might someday appear so we can understand what the impact is.
    I am sure you can understand then the anxiety that comes 
with the absence of that. I mean, since 2017, when the Little 
Lobbyists first started to come together, we have been facing a 
future with threats to the Affordable Care Act minus a viable 
replacement while our children's lives hang in the balance. It 
has been incredibly difficult and stressful for years, and that 
continues and feels more immediate with each day.
    Senator Coons. Well, thank you, Ms. Staggs. One of the 
things I try to emphasize in talking to people in Delaware is 
that the Affordable Care Act does not just protect the 20 
million Americans who get their healthcare through ACA 
Exchanges. It does not just protect the north of 100--maybe as 
many as 130 million Americans who have pre-existing conditions, 
now 7 million more because of this pandemic. It actually 
protects a majority of Americans, and this is relevant because 
we were this week considering a successor to Justice Ginsburg. 
It prohibits discrimination against women on the basis of 
gender. It does not allow insurance companies to treat 
pregnancy as a pre-existing condition or to charge more just 
because women are women. So it literally protects a majority of 
the American people.
    Let me close with just two questions, if I might, of Ms. 
Clarke from the Lawyers' Committee. Ms. Clarke, my staff has 
identified and I put up a board yesterday of 120 Supreme Court 
cases that were decided 5-to-4 that I now believe are at risk 
of reconsideration or reversal if Judge Barrett is confirmed. 
One of these 120 cases is Grutter v. Bollinger. It is a 2003 
decision that upheld the promotion of racial diversity in 
admissions at the University of Michigan.
    Just this past week, the Trump administration sued Yale 
University for its efforts to promote racial diversity. A case 
similar to that the administration has also recently supported 
against Harvard.
    Can you explain the impact this case has had for the Nation 
and the consequences if it were overturned?
    Ms. Clarke. Thank you, Senator, for that question. There 
are a number of critical cases in the Supreme Court pipeline, 
and some of the most high-stakes cases are cases involving 
challenges to race-conscious admissions policies at colleges 
and universities across our country.
    As you know, the Justice Department just recently and 
astoundingly sued Yale University. There have been similar 
suits brought against Harvard University, the University of 
North Carolina, the University of Texas at Austin. My 
organization is involved in all three of those cases, and they 
are on a fast track to the Supreme Court. The Supreme Court has 
held that race can be one among a number of factors that our 
colleges consider in pulling together their college classes. 
What is at stake here is racial diversity, just the principle 
of racial diversity.
    I am deeply concerned that a Justice Barrett on the Supreme 
Court would upend the precedents that have been firmly 
established in this area, and that would turn back decades of 
progress in our Nation and result in colleges and universities 
that are not racially diverse, college and universities that 
lock the door on Black students and Latino students who are 
deserving of access, roll back the clock on equal opportunity.
    So, I am glad that you asked this question, Senator Coons, 
because it really underscores how high stakes this nomination 
is for our Nation.
    Senator Coons. Ms. Clarke, you did some important early 
work in your career on election protection, and President Trump 
and Members of this Committee have repeatedly attacked the 
validity of mail-in voting, even though the President himself, 
members of his family, our troops overseas, our diplomats 
routinely use mail-in voting as a way to cast their ballots 
securely and there being no credible evidence of widespread 
voter fraud.
    We have actually in reality seen efforts by the 
administration to undermine the proper functioning of the 
Postal Service. We have seen the governor of Texas blatantly 
try to make it more difficult for voters to submit their 
ballots in a timely fashion in this upcoming election. We have 
seen lines between 5 and I think as many as 10 hours in the 
State of Georgia for those who are lining up for early voting 
stations. And the President has openly called for voter 
intimidation.
    Can you speak to the impacts of these impediments on 
voting, how they differ from the impact of any alleged voter 
fraud, and how this does or does not align with a long and 
tragic history in this country of voter suppression?
    Chairman Graham. Ma'am, you certainly may answer the 
question, just briefly, if possible.
    Ms. Clarke. Yes, Chairman.
    Senator Coons, voter suppression is alive and well across 
our country. We see it each and every day in places like Texas, 
Georgia, North Carolina, States that were covered by Section 5 
of the Voting Rights Act. We know that people are struggling to 
access the ballot amid the pandemic, and there have been 
lawsuits to tear down the unconstitutional barriers to the 
ballot, which is why Judge Barrett's views on voting rights 
matters, and which is why it has been very disturbing to listen 
to Judge Barrett this week express an unwillingness to 
acknowledge that voter intimidation is unlawful, to express an 
unwillingness to acknowledge that voting discrimination is 
ongoing and exists. And these cases are in the Supreme Court 
pipeline and on the Court's docket, which is why, again, we 
oppose Judge Barrett's nomination to the Supreme Court. She 
will turn the clock back on voting rights in our country.
    Senator Coons. Thank you very much, Ms. Clarke. Thank you, 
Mr. Chairman. Thank you to all the witnesses.
    Chairman Graham. Thank you.
    Senator Feinstein. May I make one brief comment?
    Chairman Graham. Yes, ma'am.
    Senator Feinstein. Mr. Chairman, I just want to thank you. 
This has been one of the best set of hearings that I have 
participated in, and I want to thank you for your fairness and 
the opportunity of going back and forth. It leaves one with a 
lot of hopes, a lot of questions, and even some ideas, perhaps 
some good bipartisan legislation----
    Chairman Graham. Thank you.
    Senator Feinstein [continuing]. We can put together to make 
this great country even better. So thank you so much for your 
leadership.
    Chairman Graham. Well, one, that means a lot to me, and I 
know we have very different views about the Judge and whether 
we should be doing this or not. But having said all that, to my 
Democratic colleagues, you have challenged the Judge, you have 
challenged us, and I accept those challenges as being sincere 
and not personal. I do not think anybody crossed the line with 
the Judge in terms of trying to demean her as a person.
    To the people on my side, thank you very much for being 
involved and, you know, telling our side of the story and 
asking the Judge about your concerns. One thing we can tell 
you, as long as there is Senator Grassley, there will be a 
question about ethanol.
    To Senator Feinstein, you are a joy to work with.
    To our staffs, I know this has been very hard, a lot of 
pressure on both sides.
    To the people who set up the room, thank you.
    To the witnesses who chose to participate today as private 
citizens, thank you.
    To the police officers who made this go well, thank you.
    To my staff, who bore the brunt of this, I really do thank 
you.
    So, what we are going to do now is end where we began. My 
view of the Affordable Care Act is different from South 
Carolina's point of view. We are getting about $1 billion less 
because of the formula. We are down to 1 Exchange, we started 
with 5, and premiums have gone up. Those issues will be decided 
at the ballot box. It is a close election everywhere. You know, 
all I can say is that voting does matter, and I am sorry that 
anybody has to wait in line. We need to make sure we deal with 
that as a Nation. But voting participation in South Carolina is 
very strong. I am happy about that. This is a chance to have 
your say. The stakes are high, as has been well articulated 
here.
    But let me just say the election will come, winners will be 
declared, and we get to start over. Thing I like most about 
democracy is it is a journey without a destination. When are we 
going to get there? We never actually do. You know, when you 
are a child, you are wanting to get to wherever you want--you 
know, you are excited about going. It really is the journey. 
And I do not know how this election is going to come out. I am 
hopeful for our side. I feel good about it. But having said 
that, you know, 2016 was a curve ball in many ways, and I just 
do not know what is going to happen, but the more people vote, 
the better. And when it is all over--and it will be over in a 
few weeks--I will just say this: If I am around, I will commit 
myself to starting over, looking forward, not backward.
    And to the Judiciary Committee, we have talked about things 
that really matter. We have had our differences, but we are 
talking about Section 230. I think that is mattering more every 
day, and the fact that we had a unanimous vote to make sure 
that social media outlets earn their 230 protection when it 
comes to protecting children against sexual exploitation, it is 
a darn good place to start.
    A lot of smart people on this Committee, I mean incredibly 
smart, about antitrust, about intellectual property. So this 
Committee, in my view, even though we have had a rough ride 
lately, has the potential, if we all embrace it, to engage each 
other and make America a stronger, safer place.
    To my friend Senator Lee, I do not think anybody likes 
their job more than you do. I have never seen anybody--Senator 
Coons, you are definitely in that category--who is so 
enthusiastic about the law and politics.
    I will end with this: Judge Barrett, I have had an 
opportunity to witness several people apply for the job of 
being a Supreme Court Justice. I have never met a more amazing 
human being in my life, not from just the professor who helped 
the struggling young blind student and everybody else she has 
helped, but just your knowledge of the law, your disposition, 
your character, and the ABA rating I think was well earned.
    So, the hearing regarding Judge Amy Barrett to become an 
Associate Justice of the Supreme Court is now over. The markup 
will be October the 22nd. To all who got us here, thank you 
very much.
    [Whereupon, at 2:16 p.m., the hearing was adjourned.]
    [Additional material submitted for the record for Day 1, 
Day 2, Day 3, and Day 4 follows.]

                            A P P E N D I X

              Additional Material Submitted for the Record

                 [Some submissions contain redactions.]
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              Prepared Statement of Hon. Amy Coney Barrett

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