WEBVTT - Barrett Avoids Slips at Confirmation Hearings 0:00:00.480 --> 0:00:05.720 You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. 0:00:07.040 --> 0:00:10.440 Senate Democrats are all but powerless to keep Judge Amy 0:00:10.480 --> 0:00:13.960 Coney Barrett off the Supreme Court. Barrett was questioned about 0:00:13.960 --> 0:00:18.800 abortion rights, Obamacare, guns at election disputes. She declined to 0:00:18.840 --> 0:00:22.280 answer questions on some issues she has expressed personal opinions 0:00:22.280 --> 0:00:24.800 on in the past, such as abortion rights, or on 0:00:24.840 --> 0:00:27.360 what she would do recording other matters likely to come 0:00:27.360 --> 0:00:30.280 before the Supreme Court. My guest is Harold Crant, a 0:00:30.320 --> 0:00:33.839 professor at the Chicago Kent College of Law. What did 0:00:33.880 --> 0:00:38.920 we learn about Judge Barrett from the hearings? We've learned 0:00:39.040 --> 0:00:42.080 very little about Judge Barrett that We've mostly learned that 0:00:42.159 --> 0:00:46.000 the centers are using this nomination process as a way 0:00:46.000 --> 0:00:49.600 to reach the American people and influence them for the election. 0:00:49.880 --> 0:00:52.800 That's what they focused on, and both Republicans and Democrats 0:00:52.840 --> 0:00:56.040 are using spin to try to get voters on their side. 0:00:56.480 --> 0:01:01.520 Judge Barrett has refused to answer numerous quess Gin's about 0:01:01.560 --> 0:01:06.640 many different topics. Has this become the norm for Supreme 0:01:06.640 --> 0:01:09.520 Court nominations hearings or is she taking it even a 0:01:09.600 --> 0:01:14.440 step further? Unfortunately, she's very close to the norm. I mean, 0:01:14.640 --> 0:01:17.839 the perfecting the art of the non answer is something 0:01:17.840 --> 0:01:21.480 that she's taken, perhaps to a different level, but we've 0:01:21.520 --> 0:01:24.560 seen that in the last several nominations, and unfortunately, in 0:01:24.600 --> 0:01:28.080 this age of partisanship, UM, the non answer is the 0:01:28.120 --> 0:01:32.720 one that gets by and doesn't antagonize any of the 0:01:32.800 --> 0:01:35.720 senators who are asking questions. There are a couple of 0:01:35.840 --> 0:01:40.160 clues that have come through. To give you one prominent example, 0:01:40.560 --> 0:01:43.920 Judge Barrett said that the president of Brown versus Board 0:01:43.920 --> 0:01:48.080 of Education recognizing that separate is not equal is entrenched 0:01:48.080 --> 0:01:50.640 into our system, has been accepted, and she would never 0:01:50.680 --> 0:01:53.160 be second guest uh. And she refused to do that 0:01:53.240 --> 0:01:56.040 for ro versus Wade. She said that despite the fact 0:01:56.080 --> 0:01:59.559 that the court has reconsidered it an affirm ro versus Wade, 0:01:59.800 --> 0:02:02.440 the fact that there's so much discussion about it means 0:02:02.440 --> 0:02:06.120 that it's not entrenched. And so her theory, which a 0:02:06.120 --> 0:02:11.600 little bizarre, is that if the president is accepted, there's 0:02:11.639 --> 0:02:14.520 no reason to re examine it, which of course is obvious. 0:02:14.800 --> 0:02:17.600 But if it's not accepted, then you can re examine it. 0:02:17.680 --> 0:02:21.080 So her her answers, even in contrast to those UH, 0:02:21.639 --> 0:02:25.320 now Justice Kavanaugh, just a couple of years ago, suggests 0:02:25.360 --> 0:02:29.080 a willingness to reconsider ropersts way, So I would consider 0:02:29.120 --> 0:02:32.280 that the biggest crewe that she left dropped today in 0:02:32.440 --> 0:02:36.200 discussion so far. She talked with Lindsey Graham at the 0:02:36.240 --> 0:02:40.200 beginning about precedent and what she calls a super precedent. 0:02:41.000 --> 0:02:43.960 First of all, is super precedent something you teach in 0:02:44.040 --> 0:02:49.160 law school nowadays? So super president is not something that 0:02:49.200 --> 0:02:53.320 we have historically taught her that knew anything about. And indeed, 0:02:53.639 --> 0:02:57.680 just as Kavanagh used the expression president on precedent, which 0:02:57.880 --> 0:03:00.160 I had not been aware of until he used to. 0:03:00.639 --> 0:03:03.399 And so what these jurors are do when you're trying 0:03:03.400 --> 0:03:06.160 to suggest that there are some presidents, yes, that we 0:03:06.200 --> 0:03:11.480 should re examine, and some presidents that are beyond reproach. 0:03:11.639 --> 0:03:14.400 And there is a consensus in the academy and probably 0:03:14.400 --> 0:03:17.400 amongst the Court, that the justices should be willing to 0:03:17.840 --> 0:03:24.200 reconsider constitutional precedents, more readily the statutory precedents, because Congress 0:03:24.200 --> 0:03:27.560 can always change a statutory interpretation by the Court that 0:03:27.600 --> 0:03:31.280 they disagree with, and Congress can't do that with the 0:03:31.360 --> 0:03:34.400 Court's interpretation of the Constitution. What do you think of 0:03:34.440 --> 0:03:37.520 the fact that she was willing to say that Casey 0:03:37.720 --> 0:03:41.400 was precedent but not Roe v. Wade. My interpretation of 0:03:41.400 --> 0:03:45.400 our answer is suggesting that despite Casey, there's still so 0:03:45.560 --> 0:03:50.680 much discussion and so much handwringing about the status of 0:03:51.560 --> 0:03:55.280 Casey and roversus way that it's not entrance precedent, which 0:03:55.320 --> 0:03:58.600 to me was a clear signal. Maybe not in the 0:03:58.680 --> 0:04:00.600 first case you hear is, maybe not in the second, 0:04:01.000 --> 0:04:03.640 but at some point she would be willing to overturn 0:04:03.720 --> 0:04:07.000 Roe versus Weight itself. Have you ever heard that definition 0:04:07.040 --> 0:04:10.640 of precedent before? Again, it makes no sense to me 0:04:10.640 --> 0:04:14.760 at all, because the point is if it's a circle, um, 0:04:15.080 --> 0:04:18.599 it's it's likely because if people have then are willing 0:04:18.680 --> 0:04:24.200 to overturned precedent, suddenly it becomes eligible for overturning, which 0:04:24.279 --> 0:04:27.200 is no rule at all. So her rule of star 0:04:27.320 --> 0:04:31.279 discisis or precedent is far weaker than others on the court, 0:04:31.839 --> 0:04:35.320 even weaker than that of the least that professed, you know, 0:04:35.440 --> 0:04:39.120 by Justice kav and not just a couple years ago. 0:04:39.240 --> 0:04:41.960 Maybe she misspoke, but it seems sound to me as 0:04:42.000 --> 0:04:45.280 if she said, if it's a controversial precedent, it's fair game. 0:04:46.000 --> 0:04:50.120 Let's go on to Obamacare, And she has written about 0:04:50.560 --> 0:04:54.800 Justice Robert's opinion in Obamacare and criticized it. What do 0:04:54.839 --> 0:04:58.159 you take away from what she said about any case 0:04:58.279 --> 0:05:02.760 of Obamacare coming before of her. But she clearly indicated 0:05:02.760 --> 0:05:04.840 that she would not recuse herself, and I don't think 0:05:04.880 --> 0:05:08.680 the rules currently would force her to recuse herself at all. 0:05:09.080 --> 0:05:12.200 She did give a little bit of clue um by 0:05:12.240 --> 0:05:15.520 saying that the precise issue that would be before the 0:05:15.560 --> 0:05:19.760 Court in early November, right after the election, dealing with Obamacare, 0:05:20.000 --> 0:05:23.400 has to do it with the constitutional a doctrine called severability, 0:05:23.440 --> 0:05:27.840 which asks how do you ascertain congresses underlying intent if 0:05:27.839 --> 0:05:31.159 one part of the statute is deemed unconstitutional? And that 0:05:31.279 --> 0:05:34.599 really on that issue hangs the fate of Obamacare. And 0:05:34.640 --> 0:05:37.280 she said, look, that wasn't that issue when I wrote 0:05:37.320 --> 0:05:41.679 the article, um, and I've done no writing on it. 0:05:41.680 --> 0:05:45.080 It's a separate issue. And if I'm on the quote 0:05:45.160 --> 0:05:47.280 and the issue comes up, I'm gonna have to grabble 0:05:47.360 --> 0:05:49.839 with it or for the first time. And that's something 0:05:49.880 --> 0:05:53.160 that suggests at least that she is not perhaps made 0:05:53.240 --> 0:05:56.440 up her decision, and that her writings would not convince 0:05:56.480 --> 0:06:01.000 her that she should vote to hold unconstitutional. I'm skeptical, 0:06:01.080 --> 0:06:03.120 but that's at least a two leaf from what she 0:06:03.200 --> 0:06:06.200 said in the hearings. I've been talking to Professor Harold 0:06:06.200 --> 0:06:09.359 Crent of the Chicago Kent College of Law. What was 0:06:09.400 --> 0:06:12.440 your take on her description of when she would recuse 0:06:12.480 --> 0:06:15.880 herself from a case. Isn't it up to the justices 0:06:16.000 --> 0:06:20.640 themselves to decide that there are some clear directives in 0:06:20.760 --> 0:06:27.640 terms of like financial um involvement that would require a 0:06:27.760 --> 0:06:31.240 judge too accuse themselves. I believe there's also a would 0:06:31.320 --> 0:06:34.560 if here had been involved in the case previously. As 0:06:34.640 --> 0:06:38.080 for instances executive branch officers, so we've had justice since 0:06:38.120 --> 0:06:41.520 we accuse themselves when they hear a case that challenged 0:06:42.080 --> 0:06:44.400 something in which they were involved in the they were 0:06:44.400 --> 0:06:47.520 in the Justice Department. But there is a wide ray 0:06:47.800 --> 0:06:51.279 gray area, and so what I think she was saying, 0:06:51.279 --> 0:06:54.280 and I think with some justification that at least the 0:06:54.320 --> 0:06:59.120 examples suggested to her by the senators were in that 0:06:59.240 --> 0:07:03.920 gray area, fact specific and likely she wouldn't have to 0:07:04.640 --> 0:07:07.960 um recuse yourself. I'm the one issue that was raised 0:07:08.480 --> 0:07:11.360 um which said some lights on this is she's been 0:07:11.400 --> 0:07:16.240 asked several times whether she promised the President to rule 0:07:16.280 --> 0:07:19.560 in a particular way on a given case, because that, 0:07:19.640 --> 0:07:21.720 of course, is what President Trump has made it seem like. 0:07:22.240 --> 0:07:25.880 And she clearly stated that that was not the case, um, 0:07:26.040 --> 0:07:29.160 because that would have strengthened the case for recusal. But 0:07:29.280 --> 0:07:32.920 on the question of the constitutionality of Obamacare, or what 0:07:33.000 --> 0:07:35.680 would happen if there was a challenge to President Trump's 0:07:35.880 --> 0:07:40.040 um election come November, she clearly said, I have made 0:07:40.040 --> 0:07:44.960 no promises, I'd have no pre commitments about ruling in 0:07:45.000 --> 0:07:49.720 any way on those cases, which again would signal that 0:07:49.760 --> 0:07:52.200 she doesn't believe she would ever need to recuse herself 0:07:52.240 --> 0:07:56.560 in those settings. I remember that Justice Scalia refused to 0:07:56.640 --> 0:08:01.960 recuse himself from a case involving Cheney, even though he 0:08:02.120 --> 0:08:05.080 was friendly with Dick Cheney and had gone hunting with him. 0:08:05.120 --> 0:08:08.000 Even there's no one the chief Justice is not looking 0:08:08.040 --> 0:08:10.440 at the Justice and saying, oh, you have to accuse 0:08:10.480 --> 0:08:14.800 yourself in this case. No, that's that's right, And and um, 0:08:15.680 --> 0:08:19.360 again one could an issue might arise, But I don't 0:08:19.360 --> 0:08:23.960 think this this particular set of circumstances dictates a need 0:08:24.040 --> 0:08:26.520 to uh for any kind of recusals. So I do 0:08:26.600 --> 0:08:30.120 think that Judge Barrett was on strong ground and thinking, 0:08:30.440 --> 0:08:33.040 you know, and saying or expressing her belief that, yes, 0:08:33.120 --> 0:08:35.480 you might have to accuse yourself in in some cases. 0:08:35.520 --> 0:08:37.360 For instance, that there was a case in which she 0:08:37.440 --> 0:08:40.840 was involved in the Seventh Circuit Um, but and just 0:08:40.920 --> 0:08:44.319 because of this politically charged atmosphere near an election, I 0:08:44.360 --> 0:08:48.240 don't think that necessarily would force your hand to accuse 0:08:48.280 --> 0:08:50.679 yourself from any kind of controversial case. And about in 0:08:50.760 --> 0:08:55.520 President Trump or involved in Obamacare. At one point I 0:08:55.520 --> 0:08:59.719 believe it was Senator Durban was asking her about just 0:08:59.840 --> 0:09:03.320 as that she took part in at the Seventh Circuit, 0:09:04.000 --> 0:09:09.160 and in one decision she was in dissent in saying 0:09:09.200 --> 0:09:11.360 that she thought that a felon should have the right 0:09:11.400 --> 0:09:14.360 to own a gun. Her rulings on the Seventh Circuit 0:09:14.520 --> 0:09:17.640 are comprehensive that they haven't touched upon many of the 0:09:17.679 --> 0:09:20.320 constitutionally charged issues of the day. And one of the 0:09:20.360 --> 0:09:22.719 cases that she has ruled upon, she did sent it 0:09:22.760 --> 0:09:26.720 in a case in which um the court held that 0:09:27.080 --> 0:09:30.560 a non violent felon did not have the right to 0:09:31.080 --> 0:09:34.199 possess a gun, and she thought that as an individual 0:09:34.280 --> 0:09:37.640 right back in sevente she believes the Second Amendment is 0:09:37.640 --> 0:09:42.120 an individual right that should give a wide ambit or 0:09:42.200 --> 0:09:47.000 live possibility for people to then enjoy that right, even 0:09:47.080 --> 0:09:50.280 felons who are non violent felons. Um, So that she 0:09:50.400 --> 0:09:54.320 signaled they're a very strong interest in maintaining the robust 0:09:54.600 --> 0:09:58.760 Second Amendment. And of course, um, the Republicans were delighted 0:09:58.800 --> 0:10:03.640 to highlight that as a way of trying to embrace 0:10:04.000 --> 0:10:06.760 people who like guns in this country to vote the 0:10:07.120 --> 0:10:11.240 Republican come um the election. So you know, you might 0:10:11.280 --> 0:10:15.000 ask yourself if if there's a Second Amendment right to 0:10:15.559 --> 0:10:19.520 for felons to own guns, then shouldn't there be a 0:10:19.600 --> 0:10:23.320 right to vote as well? Um. Whether she would agree 0:10:23.320 --> 0:10:25.880 with that statement, Um, I'm not sure, but we may 0:10:25.880 --> 0:10:29.560 find out in the future. Justice Scalia was her mentor, 0:10:29.760 --> 0:10:33.000 and she has said that she will follow in Justice 0:10:33.000 --> 0:10:34.920 Scalia's footsteps. She says, you're not going to get a 0:10:34.960 --> 0:10:37.520 Justice Scalia, You're going to get a Justice Barrett. Yes, 0:10:37.600 --> 0:10:41.440 she's an originalist, a textualist. What does that tell you? 0:10:42.640 --> 0:10:45.680 It tells us not everything, but tells us that, like 0:10:45.760 --> 0:10:48.720 Justice Scalia, should be very skeptical of sort the broad, 0:10:48.800 --> 0:10:52.560 open ended rights that have been read into the due 0:10:52.559 --> 0:10:55.920 process clause, namely the right to privacy and the right 0:10:56.000 --> 0:10:58.640 to body, the autonomy because if the right was not 0:10:58.800 --> 0:11:01.160 clear to the articulated it at the time of the framing, 0:11:01.400 --> 0:11:03.840 should be more skeptical. I mean, there are open ended 0:11:03.880 --> 0:11:07.720 constitutional provisions like free from an unregional search and seizure. 0:11:08.160 --> 0:11:13.880 You have to read some kind of evolution into those words, 0:11:13.960 --> 0:11:15.960 because you know, there was no Internet back in the 0:11:15.960 --> 0:11:19.240 time of the of the framing. And so like Justice Scalia, 0:11:19.360 --> 0:11:21.920 she might be turned out to be more liberal in 0:11:22.040 --> 0:11:26.920 some criminal justice questions, but when you come to rights, 0:11:27.040 --> 0:11:30.559 she'll be very strict and trying to understand what a 0:11:30.679 --> 0:11:33.000 right is and it was not, so she would probably 0:11:33.040 --> 0:11:37.199 tend to be skeptical of many of the rights that 0:11:37.520 --> 0:11:40.920 the course over the last thirty years have recognized, such 0:11:40.960 --> 0:11:45.600 as again by all the autonomy, privacy and we're not sure, 0:11:45.679 --> 0:11:49.640 but she might be very skeptical about affirmative action as well. 0:11:50.160 --> 0:11:51.920 And as we all know, there has been some very 0:11:51.960 --> 0:11:55.160 close votes in affirmative action over the past couple of years. 0:11:55.960 --> 0:12:00.680 Justice Scalia thought that Row was wrongly decided he was 0:12:00.720 --> 0:12:04.360 in the minority in the ol burgher Feld case, the 0:12:04.400 --> 0:12:08.640 same sex marriage case and he voted against Obamacare, So 0:12:09.080 --> 0:12:11.640 can we take it that she will be on the 0:12:11.720 --> 0:12:14.440 same side of those issues or is that drawing too much? 0:12:14.640 --> 0:12:19.400 Clearly clearly through aspect to the rights of gays and 0:12:19.440 --> 0:12:24.040 transgender there are reasons for deep concern. Her view would 0:12:24.040 --> 0:12:28.000 be that the protection clause should be quite limited. Her 0:12:28.080 --> 0:12:32.080 view of marriage is quitely probably right, very historically based, 0:12:32.440 --> 0:12:36.040 so her votes would likely line up with Justice Scalia 0:12:36.120 --> 0:12:38.439 in that case. And I think the Obamacare case is 0:12:38.480 --> 0:12:40.160 really different head to do with the scope of the 0:12:40.160 --> 0:12:44.839 commerce plause and part over um the insurance markets, and 0:12:44.880 --> 0:12:47.800 I don't think that lines up as neatly with in 0:12:47.920 --> 0:12:51.240 terms of Justice Scalia's originalism. But what I do think 0:12:51.960 --> 0:12:55.440 um that she, even more so than Justice Scalia, would 0:12:55.600 --> 0:12:59.640 probably believe in a vigorous free exercise clause, which was 0:13:00.200 --> 0:13:06.440 probably suggests that the government cannot play sort of mainstream 0:13:06.600 --> 0:13:11.679 responsibilities and obligations on on those exercising religious rights. So 0:13:11.760 --> 0:13:16.320 what happens with the conflict between the taxing power in 0:13:16.360 --> 0:13:20.719 a church, or if there's a conflict between a right 0:13:20.800 --> 0:13:24.160 of non discrimination against days or people of different different 0:13:24.240 --> 0:13:28.880 races against the religious rights, she might change the scales 0:13:29.280 --> 0:13:33.280 and vote that that the government cannot impose such burden 0:13:33.400 --> 0:13:36.680 upon those exercising the religions, and that would, I think 0:13:36.720 --> 0:13:40.160 cause much disruption in our society. How do you think 0:13:40.280 --> 0:13:44.400 she handled the questions? And you know her demeanor, She's 0:13:44.600 --> 0:13:48.600 very calm, she's very self assured. Um, she's she's clearly 0:13:48.760 --> 0:13:53.400 confident in her own abilities and in her experience that 0:13:53.440 --> 0:13:56.040 you will be able to handle the job. And in 0:13:56.160 --> 0:14:00.319 terms of traditional notions of qualifications, she's clearly a well 0:14:00.440 --> 0:14:03.440 qualified for the job. But she will move the court. 0:14:03.480 --> 0:14:05.520 She will move the court even more to the right 0:14:05.840 --> 0:14:09.000 than it is now. And part of the skirmishing that 0:14:09.200 --> 0:14:12.880 I saw both yesterday today is preparing the ground for 0:14:12.960 --> 0:14:17.360 a possible fight over the structure of the Supreme Court 0:14:17.360 --> 0:14:20.880 in the future. About whether, with these last two appointments 0:14:20.880 --> 0:14:24.600 and the sort of hypocrisy and the Republicans, if the 0:14:24.640 --> 0:14:27.920 Democrats get the Senate and the presidency, will they try 0:14:27.960 --> 0:14:31.600 to alter the Court in some way to sort of 0:14:32.240 --> 0:14:35.280 fight back against this sort of incursion or seeming incursion 0:14:35.360 --> 0:14:39.280 by the Republicans. Any final thoughts, how much of the 0:14:39.360 --> 0:14:43.520 question today by both Republicans and Democrats, say by Senator 0:14:43.560 --> 0:14:47.160 Cruz on Republican size Senator white House on the Democratic side, 0:14:48.280 --> 0:14:51.760 they didn't even ask questions of Judge Barrett, and they 0:14:51.760 --> 0:14:54.400 clearly we're using their time as is their prerogative to 0:14:54.560 --> 0:14:57.200 talk directly to the American people about on the one hand, 0:14:57.240 --> 0:15:00.960 Republican values of religion and gun ownership, on the other hand, 0:15:01.000 --> 0:15:05.320 with Democratic values of Affordable Care act Um and so forth. 0:15:05.560 --> 0:15:08.760 Because again, this is just so clearly an opportunity to 0:15:08.800 --> 0:15:13.240 try to influence voting as it continues up until November, 0:15:13.600 --> 0:15:16.640 so that in some ways even the senators themselves didn't 0:15:16.680 --> 0:15:20.760 take this seriously as an opportunity to grill and find 0:15:20.760 --> 0:15:24.920 out more about Judge Barrett. The way these hearings are 0:15:24.960 --> 0:15:29.680 now structured and the way the nominees don't answer questions, 0:15:29.840 --> 0:15:33.880 is there any point in having these hearings anymore. It's 0:15:33.880 --> 0:15:36.480 a great question, and the function of the hearings has 0:15:36.560 --> 0:15:40.880 changed over time. Um. I think there is a necessity 0:15:40.920 --> 0:15:44.960 to do for a period, to do due diligence to 0:15:45.520 --> 0:15:48.640 find that what somebody has written, to find out if 0:15:48.640 --> 0:15:52.080 there's any kind of with of impropriety in their background. 0:15:52.120 --> 0:15:56.280 So it's the idea of having something a waiting period 0:15:56.640 --> 0:16:00.960 to allow for investigation. I think it's critical, but I'm 0:16:00.960 --> 0:16:03.960 not sure that there's much function in these sort of 0:16:04.000 --> 0:16:08.480 show boat um hearing after the nomination, because again, what 0:16:08.600 --> 0:16:11.880 we've seen so far is pure posturing by both sides. 0:16:12.280 --> 0:16:14.760 Thanks for being on the Bloomberg Law Show. How that's 0:16:14.800 --> 0:16:17.920 Harold cran To, professor of the Chicago Kent College of Law. 0:16:19.920 --> 0:16:24.720 Monday session was primarily opening statements. Barrett cast herself as 0:16:24.760 --> 0:16:28.640 a judge who puts her personal preferences aside, saying the 0:16:28.640 --> 0:16:32.400 public shouldn't expect courts to resolve policy disputes or make 0:16:32.520 --> 0:16:35.760 value judgments, and that judges should not try to do so. 0:16:36.360 --> 0:16:39.280 My guest is Professor Carl Tobias of the University of 0:16:39.360 --> 0:16:43.840 Richmond Law School. What did you think about the opening statements? 0:16:43.840 --> 0:16:48.560 And let's start with the Democratic senators basically talking about 0:16:48.840 --> 0:16:52.400 what affect her nomination would have on the Obamacare decision 0:16:52.480 --> 0:16:56.320 coming up after the election. Well, they did talk about 0:16:56.360 --> 0:17:00.640 that because that's funding center for the elections that are 0:17:00.640 --> 0:17:05.080 coming up, But I think more fundamentally, they said that 0:17:05.720 --> 0:17:12.640 basically what Republicans were doing with this nomination was directly 0:17:12.680 --> 0:17:16.120 opposed to what they did in sixteen. As a matter 0:17:16.119 --> 0:17:20.120 of principal and I think they're correct about that. Basically 0:17:20.920 --> 0:17:26.800 that Senator McConnell and all the Republicans wouldn't allow Marrick 0:17:26.880 --> 0:17:32.240 Garland UM, to distinguished nominee of President Barack Obama, to 0:17:32.680 --> 0:17:36.760 even have a hearing or even meet with him, given 0:17:37.480 --> 0:17:41.600 the fact that it was ten months before UM the 0:17:41.800 --> 0:17:46.399 end of his presidency when the vacancy occurred. Here, we're 0:17:46.440 --> 0:17:52.200 twenty two days away from the election, and so as 0:17:52.200 --> 0:17:58.000 a matter of consistency, m Republicans have been inconsistent, and 0:17:58.240 --> 0:18:03.199 so I think Democrats are questioning legitimacy of what is 0:18:03.240 --> 0:18:09.720 going on. Secondly, that it's been extremely rushed to move forward. UM. 0:18:09.760 --> 0:18:13.480 The President didn't consult at all with any of the 0:18:13.600 --> 0:18:18.760 UM Democratic senators as best we can tell, and so 0:18:18.840 --> 0:18:21.080 I think they had those kinds of questions. But then 0:18:21.160 --> 0:18:24.680 they went on to talk about UM, as you say, 0:18:24.760 --> 0:18:31.480 the Affordable Care Act, and basically I think they're concerned 0:18:31.800 --> 0:18:37.359 about how she might address that issue that's before the 0:18:37.400 --> 0:18:43.040 court in short order, UM after the elections, and they're 0:18:43.080 --> 0:18:47.919 concerned about being in a pandemic and UM having people 0:18:48.240 --> 0:18:52.280 lose their health care, especially people with pre existing conditions. 0:18:52.280 --> 0:18:57.240 So UM, I think that's what they're talking about and 0:18:57.280 --> 0:18:59.920 I think a number of them also said that they 0:19:00.640 --> 0:19:05.520 would intend to talk about her record, uh and how 0:19:05.680 --> 0:19:10.920 she might resolve certain cases, or judicial philosophy, those types 0:19:10.960 --> 0:19:13.960 of things. What was the focus of the Republicans that 0:19:14.040 --> 0:19:17.560 the Republicans have as much of a centered approach as 0:19:17.560 --> 0:19:21.640 the Democrats did. Well, a number of them talked about 0:19:22.040 --> 0:19:28.480 and accused Democrats of using a religious test for office, uh, 0:19:28.520 --> 0:19:34.160 which I think is a perversion of what Democrats have 0:19:34.720 --> 0:19:40.800 been trying to do with all nominees. So I don't 0:19:40.880 --> 0:19:43.840 think that was persuasive for people who actually watched the 0:19:44.080 --> 0:19:49.760 arns Um over time, as I did. And I think 0:19:49.960 --> 0:19:53.480 though that all the Democrats seem to be saying they 0:19:54.520 --> 0:19:58.400 will not in any way do that. But UM, we'll 0:19:58.400 --> 0:20:02.440 see what the questions are. And it's a very delicate, 0:20:02.800 --> 0:20:08.200 difficult kind of issue, um to find out what a 0:20:08.280 --> 0:20:13.560 nominee philosophy might be in a particular case. UM. And 0:20:13.800 --> 0:20:19.040 so it may be that certain cases touched on questions 0:20:19.040 --> 0:20:21.800 of religion. Of course they do. Religious freedom is on 0:20:21.840 --> 0:20:27.000 the docket in many cases before the Supreeding Court. So 0:20:27.160 --> 0:20:29.400 I don't know that they can probe that without that 0:20:29.480 --> 0:20:36.399 kind of accusation coming um. From the Republicans. But even 0:20:36.520 --> 0:20:40.840 in the earlier hearing for the Seventh Circuits for Judge 0:20:40.840 --> 0:20:45.480 Barrett when she was a nominee, I don't think anyone 0:20:45.920 --> 0:20:50.720 really meant to in any way impose some kind of 0:20:50.760 --> 0:20:55.800 religious tests and violation of the Constitution. Um. So they're 0:20:55.800 --> 0:20:59.359 really talking past one another. Um it seems to me. 0:21:00.359 --> 0:21:05.480 Uh So hopefully they'll be less partisan sniping and maybe 0:21:05.560 --> 0:21:11.080 more attention to the process as we go forward. But again, UM, 0:21:11.119 --> 0:21:17.080 I do think, uh that it is rushed, and we'll 0:21:17.119 --> 0:21:22.000 see how the questioning goes and what the nominee's answers are. 0:21:22.960 --> 0:21:26.119 But there was certainly a lot of uh back and 0:21:26.160 --> 0:21:30.719 forth between um, the senators on both sides of the 0:21:30.760 --> 0:21:34.600 aisle on a whole number of issues, some of which 0:21:34.600 --> 0:21:38.679 seemed expraneous and some of which hopefully would go to 0:21:39.560 --> 0:21:44.240 the kinds of issues that should be raised here about 0:21:44.520 --> 0:21:51.800 how the nominee views for responsibility as a life tenure 0:21:51.920 --> 0:21:56.160 member of the Supreme Court. Now, let's talk about her statement. 0:21:57.000 --> 0:22:00.680 She said that courts should not try to make policy decisions. 0:22:00.800 --> 0:22:04.400 That's for the political branches. What did you make of 0:22:04.440 --> 0:22:09.400 that statement of hers? Well, that I suppose that's one 0:22:09.440 --> 0:22:13.720 thing that Democrats might ask her by what does she mean? Because, 0:22:13.880 --> 0:22:17.080 as I think they pointed out, the policy that was 0:22:17.160 --> 0:22:22.080 made was the A C A which passed, and despite 0:22:22.320 --> 0:22:26.760 President Trump and Republican efforts to gut that legislation, they 0:22:26.840 --> 0:22:32.960 can't get it through Congress. And so now despite their protestations, 0:22:33.000 --> 0:22:38.520 they're seeking a verdict from the Supreme Court that would 0:22:39.480 --> 0:22:43.000 change that UM. And so they're doing the very thing 0:22:43.080 --> 0:22:48.280 they accused Democrats doing, using the courts for policymaking. So 0:22:48.720 --> 0:22:51.920 I think we'll have to see what she really means 0:22:52.040 --> 0:22:56.480 by that UM. And you know, in fairness, I think 0:22:56.480 --> 0:23:01.399 she's saying, UM, we don't make policy. But of course 0:23:01.600 --> 0:23:06.200 that's just not true, UM, because they will make policy. 0:23:06.359 --> 0:23:11.359 If they were to find the UM law unconstitutional and 0:23:11.440 --> 0:23:14.240 strike it down, it will make policy one way or 0:23:14.280 --> 0:23:20.520 another for under thirty million people who have pre existing conditions. 0:23:20.560 --> 0:23:24.879 And so UM, we'll see if they probe that I 0:23:24.920 --> 0:23:29.760 expect they will. Supreme Court nominees are often asked about 0:23:30.160 --> 0:23:35.159 respect for precedent. Explain why that's particularly true of Judge 0:23:35.160 --> 0:23:38.639 Barrett Well. I believe she's written a number of law 0:23:38.720 --> 0:23:45.080 view articles about precedent, and UH has taken a view 0:23:45.960 --> 0:23:50.399 that he's different from some present justices on the Supreme Court. 0:23:50.520 --> 0:23:55.560 She seems to, according to her critics, respect precedent less 0:23:55.680 --> 0:24:00.880 than UM. Other justices on the Supreme Court, and certainly 0:24:01.000 --> 0:24:07.360 Justice Thomas has been a pretty strong critic of UM 0:24:07.680 --> 0:24:14.160 precedent UH and saying most most prior decisions are up 0:24:14.240 --> 0:24:20.359 for re examination. UM. Chief Justice Roberts UM, I think 0:24:20.600 --> 0:24:25.680 is UM more measured about that and says we ought 0:24:25.720 --> 0:24:32.080 to be very cautious for reasons of institutional respect from 0:24:32.080 --> 0:24:36.120 the citizens when we change a precedent, especially one that's 0:24:36.160 --> 0:24:41.920 long standing. UM. But more specifically, examples would be ro 0:24:42.119 --> 0:24:48.280 versus Wade, or there was some mention of UM privacy 0:24:48.359 --> 0:24:54.280 cases like UM the case from Connecticut in the sixties, 0:24:54.680 --> 0:25:00.000 UM that recognize the notion of a right to privacy UM. 0:25:00.080 --> 0:25:04.760 But UH, and of course Brown versus Board UH, and 0:25:04.880 --> 0:25:09.600 a number of other precedents. And so I think there's 0:25:09.600 --> 0:25:14.879 a feeling amongst some Democratic senators that UM, she is 0:25:15.200 --> 0:25:19.359 less concerned about honoring longstanding precedents, or to flip it around, 0:25:19.440 --> 0:25:24.360 more willing to overturn them. So UM, those questions will 0:25:24.359 --> 0:25:27.560 be asked. Explain this, Carl, Because the Supreme Court does 0:25:27.640 --> 0:25:30.000 overturn its own precedent. I mean, we saw that a 0:25:30.040 --> 0:25:32.320 couple of years ago when they overturned to think, a 0:25:32.400 --> 0:25:37.000 forty year old precedent in the Union case. It just 0:25:37.040 --> 0:25:40.560 seems as if all this stress on precedent is is 0:25:40.640 --> 0:25:47.200 sort of um elusive because they do overturn their own precedent. Well, 0:25:47.240 --> 0:25:51.040 they do, but you know, there ways to talk about that, 0:25:51.440 --> 0:25:55.000 and I think one measure is how long the president 0:25:55.080 --> 0:25:59.119 has existed. In other measures, how strong the precedent is. Uh. 0:25:59.200 --> 0:26:02.399 There's some discuss of something being a super precedent and 0:26:02.520 --> 0:26:07.760 that type of thing, but there are notions, especially of 0:26:08.000 --> 0:26:16.640 times passage, um, how central that um president is to jersprudence. UM. 0:26:16.800 --> 0:26:19.400 But you're right. I mean, if if the Court's made 0:26:19.760 --> 0:26:25.840 earlier decisions that's wrong, then I think justices some feel 0:26:25.920 --> 0:26:30.200 there should be changed. You don't cling to precedents that 0:26:30.320 --> 0:26:35.639 now are completely outmoded. Um. But Chief Justice Roberts, I 0:26:35.680 --> 0:26:40.720 think would say you shouldn't too readily overturned precedent, especially 0:26:40.960 --> 0:26:44.919 a new precedent, say that's a couple of years old, uh, 0:26:45.200 --> 0:26:48.919 or make a dramatic change only because the composition of 0:26:48.960 --> 0:26:54.000 the court has changed. For example, President Trump has will 0:26:54.040 --> 0:26:59.919 likely UM appoints three new justices. Just because the courts 0:27:00.040 --> 0:27:03.760 composition is change doesn't mean that president should be struck 0:27:03.800 --> 0:27:08.199 down without seriously considering them. She was a clerk of 0:27:08.359 --> 0:27:12.840 Justice Scalia and said that she would follow Justice Scalio. 0:27:13.080 --> 0:27:17.760 What does that mean? Well, that's that's a difficult notion, because, 0:27:18.640 --> 0:27:22.840 UM that he wrote decisions and joined opinions, you know, 0:27:22.960 --> 0:27:26.399