Sen. Sheldon Whitehouse claims 'dark money' behind Barrett nomination
'The Five' co-host Dagen McDowell blasts Democratic senator from Rhode Island as 'sexist'
Oct. 13, 2020 – This is a rush transcript from “The Five” October 13, 2020. This copy may not be in its final form and may be updated.
JUDGE AMY CONEY BARRETT, U.S. SUPREME COURT NOMINEE: But I will repeat what I said throughout this hearing that I made no promises to anyone. I have no agenda. There are 598 volumes of the United States report. That is something that --
JESSE WATTERS, FOX NEWS HOST: Welcome to THE FIVE, everybody. We are watching the Amy Coney Barrett hearing. And she is now facing questioning from Senator Mazie Hirono. Let's listen in.
SEN. MAZIE HIRONO (D-HI): So the 2006 newspaper ad you signed that said you, quote, "Oppose abortion on demand and defended the right to life from fertilization to natural death." It's not just the fact that this newspaper ad you joined said what I just read, but it also said, quote, "it's time to put an end to the barbaric legacy of Roe V. Wade."
In a 2013 speech you gave were you said the Roe decision, quote, "permitted abortion on demand," end quote, after you said you have 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 in which Senator Hawley fully expects you to do because you have met his litmus test.
But you know that (Inaudible), which is precedent, and you have argued that a justice's duty to follow the constitution, which you're explaining (ph) that she should -- this 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.
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 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 are
-- they wouldn't be challenged in the first place, i.e. Brown v. Board of Education.
But Roe isn't one of those cases, because we know that there all kinds of challenges to Roe, basically because the states are very busy passing all of these laws than a woman's right to an abortion. So he 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 court, 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 six 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 (Inaudible).
A case in which the court recognized the constitutional right to same-sex marriage, and I was disappointed that you wouldn't give a direct answer whether you agreed with the majority in that case or if you instead agree with your mentor, Justice Scalia, that no such right exists in the Constitution. So even though you didn't 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. A 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 don't think they use the term sexual preference as just -- I don't 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 two 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 have identified as LGBTQ living in this country. Since Obergefell was decided in 2013 -- 2015, approximately 293,000 same-sex couples have gotten married. And many of these people are rightly afraid that if you are confirmed, you adjoin 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 concerning -- concurring with the court's decision to deny Davis v. Ermold, a case involving a former Kentucky County court 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, "reading a right to same-sex marriage into the 14th Amendment, even though that right is found nowhere in the text." And these two justices signal 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's in conflict.
So this is why so many people in the LGBTQ community are so concerned that you would, in fact, joined the signaling that these two Justices have already put out there that Obergefell will fall by the wayside. Thank you, Mr. Chairman.
UNIDENTIFIED MALE: Thank you. Senator Ernst.
SEN. JONI ERNST (R-IA): 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?
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've said a number of times during the hearing that I can't comment or --
WATTERS: Welcome back to THE FIVE. We are just going to dip out quickly for a little analysis and will get right back to the hearing momentarily.
We have been watching this, Brian Kilmeade for -- what is this now, six going on seven hours. I think everybody would agree that this has been a flawless performance by Amy Coney Barrett. The Democrat senators have not gone after her religion.
Many people expected that. They have been respectful, but have not been able to pin her down on any major issues and give any Republican senator a chance to second think a confirmation vote.
BRIAN KILMEADE, FOX NEWS HOST: Well, (Inaudible) is through the roof, Jesse, 100 percent agree. I think the decorum in which both sides have shown. Obviously, Republicans are not going to be hostile towards her. I found it educational. Dana said before the show. I was kind of embarrassed to say how much I learned during the hearing.
But I learned a ton during this hearing, because it was an honest exchange of ideas. This is the two themes, recusal. We need you to recuse. In case this thing goes to the court and we can't figure out a winner between Biden and Trump, we need you out of there. And we also need you to recuse when it comes to Obamacare. And I have some illustrations of families we'll never meet and people we'll never know, which sound like wonderful people.
But I just don't know. I think it's all this stuff yesterday was a bridge too far, as was today's. We're talking about law and order, the courts, and whether you belong or not. And I just thought one thing that stood out too was Senator Cornyn. Senator Cornyn asked can you show me your notes, which she held and basically was just a U.S. Senate blank sheet of paper.
To be that competent to sit there and take questions from 20 senators for
30 minutes and not need notes, pretty impressive.
WATTERS: Yes. Sotomayor and Kagan had notes during their confirmation hearings. She does not have any notes. I think everyone is very impressed by her intellect, her able -- ability to articulate, her ideas about the Constitution, and defend her positions in a way that doesn't commit herself in a way that would make people think this is how she's going to rule.
DANA PERINO, FOX NEWS HOST: Well, I think we should point out that Kavanaugh and Gorsuch also had notes, and she doesn't. I am in awe. I think she is unflappable, poised. She is going to be a role model for women everywhere, young girls everywhere. She is calmly answering all of their questions. She doesn't get riled up. She obviously knows her brief very, very well.
It's almost painful sometimes to watch the questions from the senators because it's embarrassing how much more she knows than they do. And I thought there are so many interesting exchanges, Jesse. But if we could pull up sound bite number five. This was a moment where she talked about how her family reacted when George Floyd was killed. And I thought maybe we could just play that in case people missed it earlier today.
WATTERS: Let's play it.
(BEGIN VIDEO CLIP)
BARRETT: Given that I have two black children, it was very, very personal for my family. 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, 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's a difficult one for us, like it is for Americans all over the country.
(END VIDEO CLIP)
PERINO: You know, there are -- we should watch that again and again to understand where she's coming from. But, you know, the Democrats have tried to paint her as somebody who would create this parade of horribles, of all the things she was going to do to people who are not like her or people that are underprivileged. And I think that today what you saw. This is somebody that you would want as your neighbor and as your friend and as your judge.
And she went out of her way also to say when they try to keep pinning her saying that she was critical of John Roberts. She made it very clear. She said I don't criticize anybody. I don't attack anybody individually but I talk about their ideas. I can criticize ideas. And I thought it was just a breath of fresh air. And I also learned a ton. Brian, I really did. I loved watching it.
WATTERS: I think when she does meet Justice Roberts it could be a little awkward, the way the Democrats tried to pit them as two people against each other. Juan Williams, very, very intense questioning over Obamacare, and I think several precedents, which she was, I guess, trying to explain that she would not infuse her own views on Obamacare.
And she would follow precedent and interpret the statute as written by the House and the Senate. How did you think she did answering those questions?
JUAN WILLIAMS, FOX NEWS HOST: Well, I think it's a lot like her notes.
It's a blank slate. She won't say. She won't say what her opinions are. So I mean, you don't need notes if you just say, hey, you know what, I'm not going to tell you.
WATTERS: But isn't that what the other liberal justices did during their hearings?
WILLIAMS: No, not all of them. But some -- I mean, generally, I think what we've seen is things have become more polarized in our country. And as Justices come before the court -- I think this is especially the case after Bork in the late 80s that, you know, honest discussion of your policy positions and even things that you've written before.
It's very difficult to get out, because people think this could be used against me to disqualify me from the court. But in the case of Amy Coney Barrett, I mean, like on abortion, I mean, does anybody have any doubt she is opposed to abortion rights in this country? She signed an ad calling for Roe to be overturned. She gave speeches. She's written letters.
And in some cases, she didn't even disclose it, not only for this nomination but for previous nominations. It's been discovered now. And on the election, Jesse, you know, President Trump has said explicitly. He wants her on the court to rule in his favor in case any issues in this election come before the Supreme Court. So to my mind, wow, I mean, if Obama did something like that, who. I mean, I can see conservatives just screaming for holy murder.
WATTERS: Well, I don't think Sotomayor or Kagan recuse themselves for any issue --
(CROSSTALK)
WILLIAMS: No, I'm talking about this election.
(CROSSTALK)
WILLIAMS: We are 20 days away from an election. He's putting someone the court and saying I'm putting there so they rule in my favor.
(CROSSTALK)
PERINO: Jesse, if you wanted to play sound bite number three.
WATTERS: I think we have that when she said that the president never discussed this with her. Let's roll that.
(BEGIN VIDEO CLIP)
BARRETT: 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. I have made no pre-commitments to anyone about how I would decide a case.
(END VIDEO CLIP)
WILLIAMS: But that's what -- that's the reason that Trump said he wants her on the court. This is going to damage the court's credibility.
WATTERS: In your opinion.
(CROSSTALK)
WILLIAMS: No, I'm saying --
WATTERS: And that's not the deal that they had. They didn't have a deal.
That's the president tweeting. That has nothing to do with her or how she's going to act.
WILLIAMS: Jesse, would you say this if this was Obama? No, you would say the court is now so politicized that we as Americans can't trust our court.
WATTERS: No. I trust the Supreme Court.
PERINO: He shouldn't have tweeted it.
(CROSSTALK)
WATTERS: Dagen?
PERINO: -- the president should not have tweeted that, because it did put her in a --
(CROSSTALK)
WATTERS: And I think she handled that perfectly. That was a homerun.
DAGEN MCDOWELL, FOX NEWS HOST: And here's what Amy Coney Barrett said. My personal views, my religious views are distinct from my duties as a judge, on the abortion questions and others. She adhered to the Ginsburg standard.
She is honoring Ruth Bader Ginsburg. No hints, no forecasts, no previews.
How many times do you want me to say that over and over again?
I wanted to call out -- we are talking about her demeanor. I wanted to talk about Sheldon Whitehouse and that hypocritical monologue or lecture that he hacked up in front of her. Not asking her one question, not one. He implied that Amy Coney Barrett is not there because of her accomplishments, because of her intellect, because of how she's lived her life.
But she's there because she's a pawn of dark money, hypocrite. And you know that also is? That's sexist. Let me call him out on it. Barrett kept her game face on. He lectured her. Again, not one question. Wasn't that sexist?
She kept her composure. She showed her incredible fortitude, because every woman watching today knows what their reaction would've been.
It would've been, like, eye roll. Ask me a question. Get on with it. They wouldn't have tolerated that, but she did. And it speaks to her character.
I don't have that. I would have lost my --
(CROSSTALK)
MCDOWELL: But that -- I thought that that was notable that he sat there and lectured her for half an hour.
(CROSSTALK)
WILLIAMS: Dagen, if he says the federalist society has put all these judges, including Amy Coney Barrett on the court through Donald Trump --
(CROSSTALK)
MCDOWELL: Let me say one thing about that. The federal society does not endorse or oppose judicial nominees, number one.
WILLIAMS: They gave a list to the president.
MCDOWELL: Let me finish. I'm speaking.
(CROSSTALK)
MCDOWELL: Sheldon Whitehouse was -- he refused to answer any questions in front of a House Judiciary Subcommittee about his own dark money ties. He refused, so again, hypocrite and sexist.
WATTERS: How do you think the Democrats on the panel have conducted themselves? Feinstein, Leahy -- my opinion might have lost their fastball a little bit. Coons, Durbin, I thought, as a Democrat, probably made a more effective case.
KILMEADE: Absolutely. But you could see the (Inaudible) towards her nomination but not to her. And you could Feinstein, I feel as though, she was entering those who said she lost her fastball. Look, at her age, it's enormous. She goes 3,000 miles every day -- I mean, ever week, to San Francisco and back, at her age, unbelievable. So she came out very strong as the Ranking Member.
But the one thing I thought -- Lindsey Graham kind of nailed it in the middle. He said can I point out that everyone has been polite. Not one time have you talked over each other. And I think that that's what he wanted.
That's what he asked for in the beginning. Not that they are listening to him but they did. They actually behaved this way. It's going to be firm.
It's going to be edgy.
There's going to be emotion, but you can be polite. The world is watching.
And for once, I am watching something and don't feel like I have to take a shower. I mean, what I also note, too, is that after going through this, the real hits happen after they testify, because that's when Justice Thomas thing came forward with the whole controversy with him, and then of course, with Kavanaugh.
He thought he was in the clear, and then things came out in between that and the committee vote, but having said that, I've never seen somebody more confident. And just keep in mind. If you're -- ask a former chief of staff of President Trump. He's in control of his own tweets. A lot of times, people look around in the Communications Department and say how do I deal with this?
That's the same way that this -- Judge Barrett is dealing with this now. It doesn't reflect on her. And I think we all know the president of the United States is -- this is how I feel. I want to tell the world. He doesn't necessarily do things like every other president. And I think we should stop pretending as if we are surprised when it doesn't happen.
WATTERS: Yeah. Dana, I do want to agree with you. I was really blown away by Amy Coney Barrett today. She's got, you know, bright eyes. She looks you directly in the eye. She is very clear. She's forthcoming but not -- she's not snobby when she uses a lot of legalese that kind of loses you, and you start losing track of what you're thinking about.
She was as forthcoming as possible, direct as possible, specific as possible, and showed a sense of humor, was poised, articulate. You really can't say enough about how she conducted herself as a professional. And I thought -- maybe this has been said before. But the fact that she had her young kids there sitting silently and quietly for that entire time, shows you what a good mom she is.
PERINO: And back to Dianne Feinstein, asked her at the beginning. She said your children are so well behaved sitting behind you. And she said I have eyes in the back of my head. What I thought was interesting is just thinking about -- you know, we've been talking about this presidential election and how many of the candidates even during the primary are much older.
WATTERS: Yeah.
PERINO: And here you have someone, 48 years old, a mother of young children, dealing with things that parents all across America are dealing with. She has seven children. One has special needs. Two are adopted. One wants to be a lawyer. Another wants to be a writer. She's trying to manage all of this. She talked about having to do remote learning at home.
And that they would basically decide it, she and her husband, divide and conquer. And that's how they were going to get it done. And I think I don't even run errands. Like, she is running circles around everybody. And, you know, women often ask can you have it all? And no, you can't have it all at once. But wow, she can multitask and is so supported by her husband. That to me is a really good thing to see. And Jesse, if we have time, I do think that this -- OK.
(CROSSTALK)
WATTERS: Joni Ernst is now asking some questions of Amy Coney Barrett.
Let's listen in.
BARRETT: Well, a statute in this context, in the context of a chevron-type challenge to agencies and the agencies -- an agency's interpretation of it.
You would interpret the statute in the same way that you would interpret any other statute. So I 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 -- what communicate to a skilled user of the language.
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 gruelling. 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.
UNIDENTIFIED MALE: Thank you, Senator Ernst. Judge, are you OK to do two more?
BARRETT: Sure.
UNIDENTIFIED MALE: So Senator Booker, Senator Crapo, then we'll take a 20 minute break to grab a bite to eat and finish up. Senator Booker.
SEN. CORY BOOKER (D-NJ): Thank you, Mr. Chairman, your honor.
BARRETT: Hi, 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've just never seen before in 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's 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 four 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's 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 haven't seen these kinds of food lines in my lifetime, I don't 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's not normal that we have a president who has repeatedly attacked the legitimacy of our institutions, so much so.
And I've 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's 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's 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 the light of this abnormality, most Americans think we should wait on your nomination. It's 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 didn't 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'm going to ask you some questions that if you had told me five years ago that would be questions asked at a Supreme Court nomination hearing.
I would've thought they wouldn't 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've already spoken towards issues of racism and how you deplore it. But I want to just ask you very simply. And I imagine you'll give me very a short, resolute answer. But you condemn white supremacy, correct?
BARRETT: Yes.
BOOKER: Thank you. I'm 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 a resolute manner in which you did. I'm sorry that that question had to even be asked at this time. Here's another one.
Do you believe that every president should make a commitment unequivocally and resolutely to the peaceful transfer of power?
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 don't want to express a view on --
BOOKER: So Judge, I appreciate what you've said about respecting our founding fathers, about originalism. It's remarkable that we are at a place right now that this is becoming a question and a topic. But I'm 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 where they "swear to preserve and protect and defend the Constitution of United States." I'm just asking you, should a president commit themselves, like our founding fathers, I think, have 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?
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's not true in every country. And I think it is part of the genius of our Constitution, and the good faith and goodwill of the American people that we haven't had the situations that have arisen in so many other countries where there have been -- where those issues have been present.
BOOKER: Thank you, Your Honor. Do you think that the President has the power to pardon himself for any past or future crimes he have made -- he may have committed against the United States of America?
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's not one that I can answer.
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's in office, potentially to foreign entities, do you think he has a responsibility to disclose who his lenders are especially given the Emoluments Clause?
BARRETT: Well, Senator, there's litigation about the Emoluments Clause. I think it was in the Fourth Circuit. I don't know where it stands, but that clearly is an issue that's being litigated and one present in courts is not one on which I can offer an opinion.
BOOKER: Thank you. I think it's disturbing that we're having this conversation. I think it's 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're to foreign nations. Presidents should not be able to pardon themselves for future crimes. Presidents should condemn white supremacy. Presidents should commit themselves to a peaceful transfer of power.
Judge Barrett, you've seen a lot of my colleagues and I put up pictures of people in this room and the stories we've told, and I've appreciated the way you've listened. It's 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 "do the right thing,"
unlike Bush's appointee, John Roberts, on ObamaCare. The President has tried to do this legislatively. He's tried to do it administratively. He's failed time and time again. But he's 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 attorney generals who sued to overturn the Affordable Care Act.
You yourself said, and now I will quote you, that justice -- "Chief Justice Roberts pushed the Affordable Care Act beyond its pausing -- plausible meaning to save the statue." The same Chief Justice Roberts that Trump implied didn't do the right thing. And 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've heard said over and over again about the intentions to tear away the Affordable Care Act and the Affordable Care Act, given what you've heard about the people who rely on it, given the commitment, you know, of President Trump to set 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 in their pictures -- isn't unreasonable for them to fear that the ACA would be overturned if you were confirmed to the court?
BARRETT: Well, Senator, I want to stress to you, Senator Booker, as I've stressed to some of your colleagues today that I am my own person. I'm independent under article three. And you know, I don't take orders from the executive branch or the legislative.
BOOKER: I understand that, I guess, can I restate my question because I don't think you are understanding. I'm just asking you as an act of empathy, can you understand the fears that are exhibited by the people we put up? I don't -- the two people I put up Michelle, and Merit, I don't know what their political party is. I don't know if they're going to vote for me. I'm on the ballot. I don't 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'm asking is, can you empathize with that? Can you understand that?
BARRETT: Senator, I can certainly empathize with people who are struggling, I can emphasize with people who lack health care. 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 health care. So, I can certainly empathize with all of that.
And with respect to the ACA, you know, should I be confirmed, and as I've 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 been hung unconstitutional since it was zeroed out, whether it would be consistent with the will of Congress for the whole act of fall
-- it's 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 --
BOOKER: And Judge, I apologize, especially after the good behavior that was noted that we shouldn't be talking over each other. My time --
BARRETT: No, that's OK, Senator.
BOOKER: -- my time is running quickly.
BARRETT: Sure.
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's in America right now. Because you've heard story after story of people who don't know if they're going to be able to afford their health care, who don't know if they will be denied insurance coverage.
And I'm going to move on because of the short time. But I was just asking you is can you understand the fear giving the president that has said that they will put justice on there that will tear down the Affordable Care Act, thus taking away health care 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 assessing -
- in addressing racial justice. I was troubled that you said that racial justice and equality and I'll quote you, "how to tackle the issue of making it better those things are policy questions." I think that that's 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 -- 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 or carry harsh mandatory minimum sentences than similarly situated whites. Are you familiar with that -- the U.S. Sentencing Commission?
BARRETT: I'm not familiar with that particulars.
BOOKER: Does that surprise you?
BARRETT: I mean, I don't know. Senator Booker, that seems an odd thing for me to express an opinion out. As you might --
BOOKER: I'm not asking. These are facts. These are just facts.
BARRETT: As you and I -- I'm not familiar with that study. As you and I discussed, I am aware that there is evidence 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 of --
BOOKER: You're aware of evidence that there is implicit racial bias?
BARRETT: I am aware that there have been studies showing that implicit bias is present in many contexts, including in the criminal justice system.
BOOKER: OK. I'm just going to read some of these other statistics because I think they're 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 two sentences. You're not familiar with that study?
BARRETT: I'm not familiar with that study.
BOOKER: Do such cases come before the Seventh Circuit?
BARRETT: The three strikes cases?
BOOKER: Yes.
BARRETT: Are you talking about the three strikes -- the Prison Litigation Reform Act cases where they're struck out? Are you talking about --
BOOKER: I'm asking cases in the criminal justice and that relate to racial bias. Do they come before the court?
BARRETT: So certainly, we have discrimination cases. Certainly, there are
1983 cases or title seven cases.
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?
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's submitted in the district court technically, and then made part of the record.
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?
BARRETT: Well --
BOOKER: Just as a yes or no question. Do you believe, in fact, that there is implicit racial bias in the criminal justice system?
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.
BOOKER: So, is that a yes?
BARRETT: Senator, yes, I think that in our large criminal justice system, it would be inconceivable that there wasn't some implicit bias.
BOOKER: OK. Over the last two 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'd like to turn to a opinion you wrote last year about race discrimination, Smith versus 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'm you -- I'm going to quote you now, "The N word is an egregious racial epithet." But you went on to insist that the employee couldn't "win simply by proving that the N word was uttered at them." And that he failed to show that this that his supervisors use of the N word against him "altered the conditions of his employment and created a hostile or abusive working environment."
And you said that even based on his own subjective experience, this black employee had, "no evidence that his supervisors were lashing out at him because he was black." I'm 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 don't seem to.
He wrote in a court of appeals case that "being called the N word by a supervisor suffices by itself to establish a racially hostile work environment." And you disagreed with that. Why do you believe that the law recognizes the harm that is inflicted 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?
BARRETT: Well, Senator Booker, that opinion does not take a position different than Justice Kavanaugh. It expressly and wrote 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 didn't argue under clear Supreme Court precedent -- I didn't make up the objective subject development. Under clear Supreme Court precedent, both are required. And he didn't say that it altered the terms of -- that's not how he pled or made his case and it was a unanimous panel decision.
BOOKER: And forgive me if I'm reading your -- this case wrong, but you're saying to me he was not claiming that he had a hostile work environment and that -- and that it is in the fact pattern that the 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?
BARRETT: No, Senator. I think you're 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 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 didn't 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.
I'm 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 versus Board of Education about separate but equal, really to say that separate is inherently unequal. But you voted no. You didn't 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, "deliberate racial segregation by his very nature has an adverse effect on the people subjected to it." On one of the central teachings of Brown versus Board of Education, which I know you're 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?
BARRETT: Senator, as I said earlier to Senator Feinstein, I did not make a merits decision on that case, and I wasn't on the initial panel. The calculation of whether to take a case on bonk is different than a merits determination. So, I wasn't reaching any decision about whether title seven apply to that situation or not.
Federal rule of appellate procedure, I think it's 35, that governs on bonk proceedings sets out standards, and this case didn't create an interest circuit conflict or an inter-circuit conflict. And so, I didn't think it met federal -- all my vote means is that I didn't feel like it satisfied the elevated high standard for on bonk review, not that I thought it was correct. There's a lot of deference to panels in my court.
BOOKER: Right. But I mean, three judges disagreed with you. And these are judges appointed by Republican and Democrat presidents. They saw the case about separate really compelling. They thought the issue deserve closer scrutiny, and you had an opportunity to join them, but you didn't.
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.
BARRETT: Senator, eight of my colleagues chose not to take the case on bonk. And the on bonk 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.
BOOKER: And so, the three justices were wrong, then you disagree with your colleagues.
BARRETT: The three judges who dissented, my three colleagues whom I respect very much, thought that it met the standard for on bonk review. That's a different question than the merits. And so, I did disagree with them about whether to take it on bonk. 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 distort the panel decision then.
BOOKER: Thank you.
BARRETTS: That is a merits determination.
BOOKER: Thank you, Your Honor. Thank you. I'm moving quickly. Judge Barrett, five years ago, the Supreme Court ruled that the Constitution protects the rights of same sex couples to marry. This was a 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've married some of them myself.
On that day, five years ago, the court fulfilled really that ideal of equal justice under law. And yet now, the same sex marriage is legal, we've seen efforts to try to undermine that decision. Justice Ginsburg wrote about legal rules that would, "create two kinds of marriage, full marriage and skim milk marriage."
I firmly believe that our laws shouldn't 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 don't think you've 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?
BARRETT: Senator, I really -- and using that word did not mean to imply that I think that, you know, that it's a matter -- not a matter of -- that it's not an immutable character or that it's solely a matter of preference.
I honestly did not mean any offense or to make any statement by that.
BOOKER: But by 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're saying?
BARRETT: Senator, I'm 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.
BOOKER: So, you say Obergefell decision. Well, 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 don't see that as a precedent worth following. As you just said, Obergefell is a precedent.
BARRETT: I said Obergefell -- of course, Obergefell is an -- is a precedent. It is an important precedent. As you pointed out, there are reliance interests now on Obergefell as to why Justices Alito and Thomas have called for its overruling in the recent opinion that they issued. I can't really speak to --
BOOKER: I called it a problem. Do you know what they're referring to?
BARRETT: Well, Senator Booker, I don't know what Justices Thomas and Alito were thinking. You'd have to ask them.
BOOKER: So, we're now seeing cases where gay and lesbian Americans are being denied equal access to social security survivor's benefits. One same sex couple in Arizona was together for 43 years, got married. One of them died six months later, and now the surviving spouse has been denied benefits, because they weren't married long enough, after 43 years together in love. Does this violate the rule of equal treatment that the Supreme Court has laid down?
BARRETT: Well, in Obergefell, could you repeat the facts of this?
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're being denied survivor benefits because they weren't married long enough, because the law wrongfully denied them that equality.
BARRETT: So, that would be a legal question that would have to come up and be decided in the context of a real case. I mean, it's 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 court later.
BOOKER: But there are some precedents. Maybe I can ask a different question.
BARRETT: Sure.
BOOKER: Can a hairdresser refuse to serve an interracial couples wedding because they disapprove over interracial marriages?
BARRETT: Well, Loving versus Virginia follows directly from Brown, and it makes unconstitutional any attempt to prohibit or forbid interracial marriage.
BOOKER: Could they refuse to serve a black couples wedding?
BARRETT: Could a baker or a florist refuse to -- title seven prohibits any sort of discrimination on the basis of race by places of public accommodation.
BOOKER: How about an interfaith wedding?
BARRETT: Well, Senator, I feel like you're taking me down a road of hypotheticals that is going to get me into trouble here, because as you know, I can't opine on how cases would be resolved. And I've said that whether they're easy questions or hard questions, I can't do that.
BOOKER: So, I'm 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 the -- against the Muslim couples wedding or interfaith wedding?
BARRETT: Well, Senator, I think you know, what title seven says, as I'm sure you know, as title seven prohibits discrimination on the basis of race, on the basis of sex. All I can do is say is 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 seven, 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're asking a series of hypotheticals.
BOOKER: And so, I'm assuming that you will not respond or for the same reasons you've uttered before, you will not respond about whether a florist can refuse to serve same sex couple?
BARRETT: Well, it sounds like you're on your way to talking about Masterpiece Cake Shop and some of the cases that are very hotly contested and winding their way through the court. Since I want to make sure that I'm not in a position where I'm eliciting any views that would bear on litigation that's very active.
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 didn't mean to offend about whether it's a choice or not. These are about are the 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 Sinesse and Jen Moore. They've been together for 51 years. They've raised three children at last count and I think that that's a good way of putting it. They have 18 grandchildren and 20 great grandchildren. You know, families are. But for a long time, they had to keep their relationship and their love a secret. Finally, one same sex marriage -- one 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're asking United States Senate to agree to have you replaced 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 and Jen 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 a 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've been very generous and as the chairman allowing me to go over. I'm grateful to have the opportunity to talk with you more tomorrow.
BARRETT: Thank you, Senator Booker.
BOOKER: Thank you very much.
SEN. LINDSEY GRAHAM (R-SC): Thank you, Senator Booker.
(END VIDEOTAPE)
JESSE WATTERS, FOX NEWS HOST: Senator Booker asking some very pointed questions about race and same sex marriage to Amy Coney Barrett there. Juan Williams, you heard the senator ask Amy Coney who has two adopted black children if she condemns white supremacy. Obviously, he knows the answer to that question. Why do you think he asked that question?
JUAN WILLIAMS, FOX NEWS HOST: Because President Trump had such trouble with it.
WATTERS: Did he have trouble with it?
WILLIAMS: He had terrible trouble. I mean, you saw the debate, right?
WATTERS: But what does it have to do with Amy Coney Barrett? She has to black adopted children.
WILLIAMS: I heard you. I heard you.
WATTERS: You know what the answer is going to be. I don't know. I'm glad that she said what she said. She's to be saluted for being direct. Because the president, if you recall, could not be direct.
WATTERS: Right, I think he's --
WILLIAMS: But I mean, this is -- this is the power of what we just saw from Senator Booker. He said that President Trump, in fact, has cast a shadow over her nomination. So, I mean, a lot of times we don't want to say, oh, this is about her. But no, in so many ways, it's about the process, it's about the fact that Republicans blocked Merrick Garland, and they're now forcing this through in a rushed manner.
It's about the fact that she has not only a record, but she has explicitly said what she thinks about abortion, what she thinks about the health care act. So, when you have this moment, Senator Booker says, well, you know, given President Trump saying he wants somebody in the court to decide the election, tell us what do you think about the constitution that says that there should be a peaceful transfer of power? That's why you got to ask these questions. It's not about her. It's about the process, which is illegitimate.
WATTERS: Dagen McDowell?
DAGEN MCDOWELL, FOX BUSINESS NETWORK ANCHOR: This is not about President Trump today or even tomorrow. This is about Amy Coney Barrett. Say her name with me. She is a woman we've seen today of incredible compassion, intellect, and faith. She is a woman dedicated to family, church, community, country, and the law.
And Senator Booker tipped his hat, didn't he? He said, your colleagues, Alito and Thomas, so we know how this is all going to end. She will be on the high court.
WATTERS: Dana, the senator also mentioned a petition that did come out from Notre Dame where she -- where she taught for many, many years. You were telling us in the break about the petition.
DANA PERINO, FOX NEWS CHANNEL HOST: So, it's a letter signed by 70 -- I think it's 77 professors at Notre Dame. None of which are in the law school, one of which teaches medieval studies, saying that they object -- you know, and this -- you've seen this kind of thing before, like nice try, guys, but that letter is not going to have any effect.
I also think that the Democrats understand that she will be confirmed. She is unflappable. She has become more comfortable I think in the last nine hours. She listens intently. She doesn't fidget. She doesn't doodle. And I think that tomorrow's hearing, I think that the senators will be glad that they only have 20 minutes rather than 30 because this thing is over.
WATTERS: Final thoughts, Brian Kilmeade.
BRIAN KILMEADE, FOX NEWS CHANNEL ANCHOR: Senator Booker did his homework. I appreciate the line of questioning was different. Give him that. But that should be for the hallway interviews. Do you have empathy for people that are suffering? Absolutely. What does it have to do with this?
And I understand how you feel, Juan, about, you know, should she be there, should the space be filled. But I think that ship has sailed. When I look at her, does she belong there? Keep the Trump questions out of this. Do it in the beginning with the open but don't pose him to her. She's already parried them for 20 hours. Why waste your time, your precious time with 30 minutes by bringing what you don't like about President Trump?
WATTERS: Well, I don't even think they think it's a waste of time. I think they think that's the most potent use of the time because they know it's all being taken live on cable and networks and they want to get that shot in to the President.
WILLIAMS: Did you see senator -- did you see Senator Graham -- did you see Senator Graham's opening statement? That was a political pitch.
WATTERS: Yes, politicians are politicians. What can we say, Juan? That's it for us. "SPECIAL REPORT" is up next with Bret.
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