[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
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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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