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Judge Amy Coney Barrett Faces Questions During Supreme Court Confirmation Hearing. Aired 2-2:30p ET

Aired October 13, 2020 - 14:00   ET


[14:00:00] KLOBUCHAR: I think this was in a lecture you gave, where you said the dissent's view was that it wasn't for the court to decide. They could -- 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 23rd, 2020, "I think this" -- he means the election -- "will end up in the Supreme Court and I think it's very important that we have nine justices." I don't 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'm 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 for any -- 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 are -- people are voting right now, Judge? I think one of my colleagues said it.

BARRETT: I don't know.

KLOBUCHAR: It's more than 40 states, people are voting right now as we speak. I think something like nine 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?

BARRETT: Senator Klobuchar, I think that is a question for the political branches.

KLOBUCHAR: OK. That's -- that's 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 belong only to virtuous citizens." What does that mean?

BARRETT: Senator, I would need to look at the article to clarify but as I'm sitting here, I don't think I said "felons should lose voting rights." I think what I was talking about is that ...


BARRETT: ... 14th Amendment - yeah, that - that ...

KLOBUCHAR: But it wasn't an article, just to be clear, right? This was - this is your dissent.

BARRETT: Oh, my - sorry, my dissent.

KLOBUCHAR: Yeah, I think it's your dissent in Kanter v ...

BARRETT: Yes, you're right.

KLOBUCHAR: And it says "felons could be disqualified from exercising certain rights, like the rights to vote and serving on juries" but apart from that clause, you said "these rights belong only to virtuous citizens." That's what - I'm trying to understand what that means.

BARRETT: So the argument in the case, those who were challenging Heller and those who are arguing on the side of the government in the Kanter case, is that the 7th - the 2nd 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 ...

KLOBUCHAR: OK but how would you define the word "virtuous"? Because it doesn't appear in the Constitution. I'm just trying to know what that means because we're - we're living at a time where a lot of people are having their voting rights taken away from them. So what's "virtuous"?


BARRETT: OK, 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's 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 in whether they're good or not, in whether they're allowed to vote. That's not what I said.

KLOBUCHAR: OK, now let me ask you this in a different way, cause now let's go to the real world here. So in Justice Ginsburg's dissent in Shelby, where a five-four 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 cause you just said that not - let's not get to her dissent - you agree with the concept that it's a fundamental right, because you just ...

BARRETT: As I just said, yeah, the court has repeatedly, repeatedly said ...

KLOBUCHAR: OK. So she also wrote in her dissent that the Constitution uses the words "right to vote in five separate places - the 14th, 15th, 19th, 24th and 26th amendments. Each of these amendments" - this is still her talking now - the - "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?

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 can't express a view on that, as I've said, because it would be inconsistent with the judicial role.

KLOBUCHAR: OK, so here's 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 won't say whether or not you agreed 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're 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 pre-clearance, 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's 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 of these states, including a number of them that my colleagues over there represent, have enacted stricter laws. Has it happened?

BARRETT: Senator Klobuchar, I want to clarify - you said I was answering Senator Durbin's questions about the 2nd Amendment but refusing to answer yours, and so I just wanted to clarify that I have written Kanter v Barr and so that's why I was talking about it, but since I didn't write Shelby, I can't really talk about it.

So anything that I've written about or talked about, I would be happy to answer your questions.

KLOBUCHAR: OK, all right. But again, you - 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's a fundamental right, the issue is that this case and the Voting Rights Act are so key, and let me - let me just say why.

We're 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's what you do.

States like South Carolina, Texas, North Carolina, Louisiana, Tennessee have policies that make it harder for people to vote and it's 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 didn't know enough about it back then, because the President hadn't told us what he knew and we didn't 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 two weeks ago, the U.S. Supreme Court reinstated the South Carolina report requirement that mail-in ballots must have witness signatures. In the middle of a pandemic, you've got to go and get a witness.

In Texas, Republicans have argued that the pandemic wasn't 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're 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 have laws that were so egregious to make it harder to vote that poor circuit struck down their law and noted that it target African Americans with almost surgical precision.

So that is what the state saw. 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 for the 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's 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 states constitution when exercising their authority under the Elections Clause?

BARRETT: Senator Klobuchar, that would be eliciting an opinion from me about whether I agreed or disagreed with the results in that case ...

KLOBUCHAR: OK. Is it constitutional for voters to amend a state constitution to establish specific processes for election like the voters in Arizona did to stop gerrymandering?

BARRETT: Again, you're 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 can't express a view un-precedent (ph) or on how I would decided any question that was provoked by the application of that precedent to a later case.

KLOBUCHAR: OK. Last week a contractor from outside of my state of Minnesota started recruiting poll watchers with Special Forces experience 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 it's not true. So as a result of his claims people are trying to get poll watchers, Special Forces people to go to the poll. Judge Barrett, under federal law, is it illegal to intimidate voters at the polls?

BARRETT: Senator Klobuchar, I can't characterize the facts in a hypothetical situation and I can't 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 can't answer questions like that.


KLOBUCHAR: OK. Well, I'll make -- I'll make it easier. 18USC594 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 president -- presents of armed civilian groups at the polls?

BARRETT: Senator Klobuchar, you know that is eliciting -- I'm not sure if whether to say it's eliciting a legal opinion from me because the reasonable person standard, as you know, is more common in the law or just an opinion as a citizen but it's not something really that's appropriate for me to comment on.

KLOBUCHAR: OK. Here's one that I think is. Selection of election Electoral College electors are selected. Judge Barrett, in 1932 the Supreme Court and (inaudible) in the case involving my state ruled that the Minnesota state legislature could not change election rules unilaterally.

Do you agree that unanimous opinion in (inaudible), which has never been questioned by any other Supreme Court case is settled law?

BARRETT: Well, I'll say two things about that. First of all, I was not aware of that case so you've taught me something. But secondly, I can't comment on the precedent, give thumbs up or thumbs down in Justice Kagan's words.

KLOBUCHAR: OK. Well, why don't we end there with precedents. I think that's a good way to end here. So you wrote in your 2013 Texas law review article that you tend to agree with a view that when a Justice's best understanding of the Constitution conflicts with Supreme Court precedent or case law, 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 14th Amendment prohibits states from segregating schools on the basis of race. So is that precedent? That can't be overruled.

BARRETT: Yes -- well, that is precedent. And as I think I said in that same article, it's super precedent. People consider it to be on that very small list of things that are so widely established and agreed upon by everyone. Calls for its overruling simply don't exist.

KLOBUCHAR: OK. Well, you also separately acknowledge that in Planned Parenthood v. Casey, the Supreme Court's controlling opinion talked about in -- the reliance interest on Roe v. Wade, which it treated in that case as super precedent. Is Roe a super precedent?

BARRETT: How would you define super precedent?

KLOBUCHAR: I -- I -- I actually -- I might thought someday I'd be sitting in that chair. I'm not, I'm up here, so I'm asking you.

BARRETT: OK. Well, people use super precedent differently.


BARRETT: The way that it's used in the scholarship and the way that I was using it in the article that you're 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'm answering a lot of questions about Roe, which I think indicates that Roe doesn't fall in that category. And scholars across the spectrum say that doesn't mean that Roe should be overruled but descriptively it does meant that it's a case -- not a case that everyone has accepted and doesn't call for its overruling. I don't think that ...

KLOBUCHAR: OK. So here's what's -- here's what's interesting to me, you said that Brown is -- and I know my time is running out -- is a super precedent. That's 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 courts controlling opinion in that Planned Parenthood v. Casey case has described as a super precedent? That's what I'm trying to figure out.

BARRETT: Well, Senator, I can just give you the same answer that I just did. I'm using a term in that article that is from the scholarly literature. It's actually when 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 -- as Richard Fallon (ph) from Harvard said, Roe is not a super precedent because calls for its overruling have never ceased but that doesn't mean that Roe should be overruled. It just means that it doesn't fall on the small handful of cases like Marbury versus Madison and Brown versus the Board that no one questions anymore.

KLOBUCHAR: Is United States v. Virginia Military, is that super precedent?

BARRETT: Senator Klobuchar, if you continue to ask questions about super precedents that aren't on the list and the super precedents that I discussed in the articles that are well acknowledged in the constitutional law literature; every time you ask a questions I'll have to say that I can't grade it.

KLOBUCHAR: OK. 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's going to have severe repercussions for them. Thank you.


GRAHAM: Senator Sasse.

SASSE: Thank you, Mr. Chairman. Judge, welcome back. I'm mean this as good news but it might not feel like it after me you're half done. I'm 11th of 22. Mr. Chairman, before I begin my questioning; I'd 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.

GRAHAM: Without objection.

SASSE: Thank you. Judge, you have said that the meaning of law doesn't change with time. And you've said that's very important. Can you unpack for us why it's so important that the meaning of a law doesn't change with time?

BARRETT: Sure. Because the law stays the same until it is lawfully changed. And if we're talking about a law that has been inactive by the people's representatives or gone through the process of constitutional amendment or constitutional ratification; it must go through the lawfully prescribed process before it's changed. So Article 5 in the context of the constitution or by (inaudible) and presentment (ph) in the context of statutes. And it's not up to judges to short circuit that process by updating the law, that's your job.

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 4th Amendment have nothing to say about cell phones? Unreasonable search and seizure was obviously not written at a time when they had imagined mobile technological devices that addicted our kids. Does the 4th Amendment have nothing to say about cell phones?

BARRETT: No. The 4th Amendment -- so the constitution one reason why the longest lasting written constitution in the world is because it's written at a level of generality that's specific enough to protect rights but general enough to be lasting. So that when you're talking about the constable banging at your door 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 4th Amendment is a principle. You know it protects against unreasonable searches and seizures. But it doesn't 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 enables someone with superman x-ray vision to simply see in your house. So there's no need to knock on the door and go in. Well I think that could still be analyzed under the 4th Amendment.

SASSE: So, I think this is a useful place to explain to the American people again what originalism is and why it's a mistake to view it as a republican position? I think that originalism is a part of a jurist prudential debate, it's not a part of a policy continuum between republicans and democrats. I think it's 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's 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?

BARRETT: Right. So originalism means that you treat the constitution as law because it commits these text 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 -- as (ph) I said, the law stays the same until it's 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 4th Amendment many of its principles are more general. Unreasonable searches and seizures, free speech; those are things that have to be identified or flushed out or applied over time. So the fact that there wasn't the internet or computers or blogs in 1791 doesn't mean that the 1st Amendment's free speech clause couldn't apply to those things now.

It enshrines a principle and we understand the principle as it was at the time. But then it's capable of being applied to new circumstances.

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?


BARRETT: Sure. Well, Senator Sasse, I think one thing that's worth pointing out is that in the academy in any event where I spent a large portion of my career, originalism is not necessarily a conservative idea. There is a whole school of thought so originalist are now a very diverse lot. And there is a school of originalism that's 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 don't 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 -- it writes briefs in support of originalism but taking it from a more progressive standpoint. So I don't think it's -- I think probably people think oh it's only conservatives who are originalists but actually it's 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's just that some weight it differently where as originalists would give it dispositive weight when it's discernable. 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's 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's called living constitutionalism. In that the constitution can evolve and change over time. Sometimes it's called like a more pragmatic constitutionalism.

SASSE: So I just -- 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've advocated for you over the course of the last three years must be doing it because we know something about your policy views and we've 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 doesn't want to take away the job of a legislator that's account -- a legislature that's 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're 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?

BARRETT: That is what I'm saying.

SASSE: So on the Notre Dame law faculty, when you were up for the vacancy on the 7th Circuit three years ago, the Notre Dame law faculty, as I understand, the letter that we got from them here had people unanimously recommend you across the faculty, and I would assume there's a pretty wide view of policy on the Notre Dame law faculty.

BARRETT: There is.

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're comfortable with you even though they don't think they might agree with every policy view that you have before you put on your robe?

BARRETT: I hope that is what people think of me because that's what I've always striven to do and certainly in my time as a judge, I -- my job, my boss is the rule of law, not imposing my policy preferences.

SASSE: So can you tell us what the black robe is about? Why do judges in our system wear robes?

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 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, and not speaking of our -- speaking for ourselves as individuals.

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.


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?

BARRETT: So Article III of the Constitution says that courts can hear cases or controversies. So a judge can't walk in one day and say, "I feel like," you know, "visiting the question of health care and telling people what I think."