Judge Barrett acknowledged that she is aware of President Trump’s desire to dismantle the Affordable Care Act
WASHINGTON – At today’s Senate Judiciary Committee Supreme Court nomination hearing, Senator Klobuchar asked the nominee about her knowledge of President Trump’s stated intention to repeal the Affordable Care Act before she wrote an article criticizing the case that upheld the historic healthcare law. Senator Klobuchar also asked about the nominee’s views on how courts have interpreted the antitrust laws, access to voting by mail, the First Amendment’s guarantees of freedom of the press, and how Bush v. Gore undermined the Supreme Court’s legitimacy.
“Health care is on the line and Judge, that is what is on the line in your nomination hearing, which unfortunately has been plopped in the middle of this election…I just wanted to make that clear to the Chairman and to everyone out there that while there is this doctrine to separate stuff and to try to uphold part of the statute, like maybe pre-existing conditions or doing something about keeping your kids on the insurance, the position of the Trump Administration is to throw the whole thing out.
“The second thing I want to make clear is that you've been nominated to the highest court in the land, and you will be the deciding vote in many cases that will affect people's lives. And I appreciate that you have said it is not the law of Amy, it is not your law, but the point is, is that you will be in a really important position. I think that is one of the reasons that they’re trying to ram through this process right now. And while you are not saying how you are going to rule on cases, as I said yesterday, I've been following the tracks.
“The only way for the American people to figure out how you might rule is to follow your record and follow the tracks. And we know this, you have said you consider Justice Scalia--one of the most conservative judges in our nation's history--as a mentor. You criticized a decision written by Justice Roberts upholding the Affordable Care Act. In a 2015 NPR interview, you praised the dissent by Justice Scalia in another Affordable Care Act case, saying the dissent had the better of the legal argument. You signed your name to a public statement featured in an ad that called for an end to what the ad called the "Barbaric legacy of Roe v. Wade", which ran on the anniversary of the Supreme Court decision. You wrote your own dissent disagreeing with long-standing court rulings on gun safety, expressing your legal opinion that some felons should get guns, and you once discussed a dissent in the marital equality case asking whether it was really the Supreme Court's job to make that decision.
“So, to me, these tracks lead us to one place, and that is that you will have the polar opposite judicial philosophy of Justice Ginsburg,” Klobuchar said at the hearing.
Klobuchar is a member of the Senate Judiciary Committee, which has jurisdiction over Supreme Court nominations. Prior to her time in the Senate, Klobuchar served as Hennepin County Attorney.
Yesterday, Klobuchar questioned Judge Amy Coney Barrett about the real world impact that her approach to the law, including her views on voting rights and the Affordable Care Act, could have on the American people if she is confirmed as a Supreme Court Justice.
On the opening day of the Supreme Court confirmation hearings, Klobuchar delivered her opening statement, calling on the American people to continue to vote and raise their voices against this nominee that President Trump and the Republicans are trying to ram through in a sham hearing.
Last month, Klobuchar gave remarks from the Senate Floor highlighting the risk of overturning the Affordable Care Act during the pandemic.
Also in September, in an exchange at the Senate Judiciary Committee, Klobuchar urged her colleagues to hold consideration of a new Supreme Court nominee until after the election in response to remarks from Senator Ted Cruz.
Transcript of remarks and questions as delivered from October 14, 2020 below:
Senator Klobuchar: Thank you very much, Mr. Chairman. Hello, Judge. I want to start out again by reminding our friends at home, people at home, that this isn't normal. We shouldn't be here right now. We are in the middle of a pandemic and people are sick. We are in the middle of the election and people are voting. And yet here we are, stuck in a nomination hearing. I know what my constituents care about, what they have been calling and writing me about. And that is they are afraid of losing their health care in the middle of the pandemic. People's lives depend on the Affordable Care Act. Like Steve, a senior from Tower, Minnesota who has a heart condition and relies on his prescription medication. Emily from Minneapolis, her mom was diagnosed with breast cancer. Janet from Rochester whose brother has a mental illness. Or Christie, a mom from Bloomington whose daughter had a tumor.
That is what is on the line. Health care is on the line and Judge, that is what is on the line in your nomination hearing, which unfortunately has been plopped in the middle of this election. This morning you had, I’d call it, an academic discussion with Chairman Graham about the doctrine of severability, and that is about if you can uphold part of a statute but throw out another part of it. And you correctly said there was a presumption to save the statute if possible. So I want to be really clear with the American people that the Trump Administration’s own brief, this is a position of the Trump Administration, filed by the Trump Justice Department says that the entire Affordable Care Act must fall. That is the position of the Trump Administration going into this case that is going before the Supreme Court in a few weeks. Judge, you clerked at the Supreme Court. Does the Justice Department’s brief that they have filed represent the Administration’s and therefore the President's position before the Supreme Court?
Judge Barrett: The Solicitor General is the government’s advocate before the Court. Yes that would represent the United States.
Senator Klobuchar: Right. And if the brief didn’t represent the President's position, he would have the Solicitor General and the Justice Department withdraw the brief, is that right?
Judge Barrett: I believe so yes.
Senator Klobuchar: Okay, I just wanted to make that clear to the Chairman and to everyone out there that while there is this doctrine to separate stuff and to try to uphold part of the statute like maybe pre-existing conditions or doing something about keeping your kids on the insurance, the position of the Trump Administration is to throw the whole thing out. The second thing I want to make clear is that you've been nominated to the highest court in the land and you will be the deciding vote in many cases that will affect people's lives. And I appreciate it that you have said it is not the law of Amy, it is not your law, but the point is, is that you will be in a really important position. I think that is one of the reasons that they’re trying to ram through this process right now. And while you are not saying how you are going to rule on cases, as I said yesterday, I've been following the tracks.
The only way for the American people to figure out how you might rule is to follow your record and follow the tracks. And we know this, you have said you consider Justice Scalia — one of the most conservative judges in our nation's history — as a mentor. You’ve criticized the decision written by Justice Roberts upholding the Affordable Care Act. In a 2015 NPR interview you praised the dissent by Justice Scalia in another Affordable Care Act case, saying the dissent had the better of the legal argument. You signed your name to a public statement featured in an ad that called for an end to what the ad called the "Barbaric legacy of Roe v. Wade" which ran on the anniversary of the 1973 Supreme Court decision. You wrote your own dissent disagreeing with long-standing court rulings on gun safety, expressing your legal opinion that some felons should get guns and you once discussed a dissent in the marriage equality case asking whether it was really the Supreme Court's job to make that decision. So, to me, these tracks lead us to one place, and that is that you will have the polar opposite judicial philosophy of Justice Ginsburg. And to me, that would change the balance of this court, which is already 5-4 and known as very conservative when you look back through history, to 6-3. 6-3. And that would have great repercussions for the American people.
So I wanted to follow-up on something that Senator Harris and I asked you about yesterday and that is the issue of whether or not you understood the President's clear position on the Affordable Care Act before you wrote the article in which you criticized the legal reasoning for upholding the Affordable Care Act. The President tweeted just one day after you were nominated, that would be September 27, that it would be a big win if the Supreme Court strikes down the health law. But before you were nominated, and this is what we showed yesterday, Donald Trump tweeted promising that his judicial appointments “will do the right thing on Obamacare” unlike Justice Roberts.
Yesterday, you were asked by Senator Harris, prior to your nomination, were you aware of President Trump's statements committing to nominate judges who will strike down the Affordable Care Act? You said “I can't really definitively give you a yes or no answer. What I would like to say is I don't recall hearing about or seeing such statements.” And after she followed up, you said that “the tweet wasn't something that I heard or saw directly by reading it myself.” Okay. So I just want to go through some of the things that have happened over the last few years regarding the President's, really, his obsession to repeal Obamacare. He said “we will repeal and replace disastrous Obamacare” when accepting the Republican nomination at the Republican Convention in 2016. Did you see that speech?
Judge Barrett: At the Republican Convention?
Senator Klobuchar: In 2016, I'm not asking if you were there, I was asking if you saw it on T.V.
Judge Barrett: No, I don't believe I watched any of the convention on T.V. If I did, I don’t remember any of it.
Senator Klobuchar: He has said things like he wants to immediately repeal and replace the disaster known as Obamacare. He has said that he wants to get rid of it. He has said in States of the Union, “I am calling on Congress to repeal it.” He said, “Can you believe that Mitch McConnell, who has screamed repeal and replace for seven years, couldn't get it done.” So there have literally been hundreds of statements by him, by my colleagues, and I just find it hard to understand that you were not aware of the President's statements.
Judge Barrett: I am aware that the President opposes the Affordable Care Act. I am aware that he has criticized the Affordable Care Act. I took Senator Harris's question yesterday to be referring to the specific tweet, maybe the one that you have behind you, about how he wanted to put a Justice on the court to replace Obamacare. And I'm definitely aware of that tweet now, and as I said to Senator Harris yesterday, it came up in some of my calls with Democratic senators, brought it up. But I honestly can't remember whether I knew about it before I was nominated or not. I'm not sure.
Senator Klobuchar: But did you have then a general understanding that one of the President's campaign promises was to repeal the Affordable Care Act when you were nominated?
Judge Barrett: As I’ve said before, I'm aware that the President opposes the Affordable Care Act.
Senator Klobuchar: Well I know you are aware now, but were you aware back then? When you were nominated.
Judge Barrett: Well Senator Klobuchar, I think that the Republicans have kind of made that clear, it’s just been part of the public discourse.
Senator Klobuchar: Okay. So is the answer yes, then?
Judge Barrett: Well, Senator Klobuchar, all these questions you are suggesting that I have animus or that I cut a deal with the President. I was very clear yesterday that that isn't what happened.
Senator Klobuchar: Were you generally aware of the President's statements when you wrote in an article in the University of Minnesota Law School Journal in 2017 — the same year that you became a Seventh Circuit Judge — that he pushed the Affordable Care Act beyond its plausible meaning to save the statute that Justice Roberts had done that? Were you aware of that, of the President's statements when you wrote that article?
Judge Barrett: So that article, Senator Harris told me yesterday, was published in January of 2017, and a law review article takes several months to go into production. So I can't remember specifically when the conference was. That article came out of a conference for Randy Barnett’s book. I can't remember when it was, but I suspect it was before the election. It's not like I wrote it in January 2017--
Senator Klobuchar: Okay, but President Trump has been saying this in 2015, in 2016, and that is two years, it didn't take that long to write that article. So my question is simply, were you aware of President Trump's opposition to the Affordable Care Act during that time?
Judge Barrett: Senator Klobuchar, I have no idea and I suspect that if the article was published in January that I wrote it sometime before the presidential election. And again, I want to stress I have no animus to or agenda for the Affordable Care Act. So to the extent you are suggesting this was like an open letter to President Trump, it was not.
Senator Klobuchar: Okay. In the 2017 University of Minnesota Law School journal that we just discussed, one of the things you said is there is a risk that a faction can run away with the legislative process but there is also a risk that a faction will conscript courts into helping them win battles they have already lost fair and square. Is that something you wrote in that article?
Judge Barrett: I did, I was responding to an argument made by Randy Barnett in his book.
Senator Klobuchar: So I mean, that is what I'm afraid has happened here. They have tried seventy times, the Republicans in Congress, to overturn Obamacare. And now they are bringing this case to the court and you are going to be sitting on the court. And I find it very hard to believe that you didn't understand that when you wrote the article.
There's one other piece of this, and that is the effect on the economy. We all know this has been very difficult, my colleagues know this. According to one Yelp study, more than 800 businesses have closed every day, 30 million people were out of work at the height of the pandemic. We are still down 10 million jobs. So one of the things that has been going on here is we have seen more and more consolidation, leading me to antitrust. Part of this, I think, is the COVID relief package we have to pass, but also antitrust. Competition is a driving force of our economy. Justice Ginsburg at her nomination hearing described the Sherman Act as a broad charter. She said that free enterprise is the spirit of antitrust laws and the court construes statutes in accord with the essential meaning that Congress had for passing them. Do you agree with her statement?
Judge Barrett: The Sherman Act is broadly worded, insofar as it prevents contracts, combinations and conspiracies in restraint of trade. And because that language is broad, courts have developed a robust doctrine of common law to enforce and bring about its promise of eliminating contracts, conspiracies and combinations that restrain trade.
Senator Klobuchar: Yes, and I think you and I have discussed this before but in recent years, Supreme Court opinions — by the way, all decided over Justice Ginsburg’s dissent — have made enforcing our antitrust laws even more difficult. As a textualist, how would you reconcile the broad language of the Sherman Act with recent judicial precedent that has substantially narrowed the application of the statute in practice?
Judge Barrett: Let's see. I can say as a textualist how I would approach the Sherman Act. And in the case of the Sherman Act, you are right that it’s broad language. The text of the Sherman Act, as the court has determined over time, essentially permits the court to develop a common law. So I think, you know I haven't really had occasion to decide very many antitrust cases on the Seventh Circuit, but it’s an area, because it’s largely been left to judicial development, that is controlled by precedent for the most part.
Senator Klobuchar: It is, and that is my concern right now, is that it has been so narrowed in its interpretation of the Sherman Act, the Clayton Act, that it’s almost become impossible for people to bring those cases in any big way.
I want to turn to something we talked about yesterday which is elections. You worked on the recount in Florida that was related to the Bush v. Gore case, including on an absentee ballot issue on behalf of the Republican side of that case, is that right?
Judge Barrett: I did work on Bush v. Gore, I did work on behalf of the Republican side. To be totally honest, I can't remember exactly what piece of the case it was.
Senator Klobuchar: Don’t worry, I'm not going to ask you that. We’re in the middle of a global pandemic that is forcing voters to choose between their health and their vote. Are absentee ballots, or better known as mail-in ballots, an essential way to vote for millions of Americans right now?
Judge Barrett: That is a matter of policy on which I can't express a view.
Senator Klobuchar: To me, that just feels like a fundamental part of our democracy, but okay. Let’s try this — have you ever voted by mail?
Judge Barrett: Um, I can't recall a time that I voted by mail. It may be in college that I did when I was living away from home. But I can't as I'm sitting here specifically recall a time I voted by mail.
Senator Klobuchar: Do you have friends or family that have voted by mail or are voting by mail?
Judge Barrett: I have had friends or family vote by mail.
Senator Klobuchar: And you understand we are operating in a moment where the President is undermining vote by mail, even though a number of Republican governors and Republican senators are supportive of it. Many argue that Bush v. Gore, back to your earlier work, hurt the Court's legitimacy. If you are confirmed, the Supreme Court will have not one, not two, but three justices — you, Justice Kavanaugh, and Chief Justice Roberts — who worked on behalf of the Republican Party in matters related to the Bush v. Gore case. Do you think that that is a coincidence?
Judge Barrett: Senator Klobuchar, if you're asking me whether I was nominated for this seat because I worked on Bush v. Gore for a very brief period of time as a young associate, that doesn't make sense to me.
Senator Klobuchar: I just think it is such a coincidence to me, I actually didn't know it until yesterday. But, will having justices with this background, two of whom were appointed by the current President, decide any cases related to the upcoming election, do you think that will undermine the legitimacy of the Court?
Judge Barrett: Asking whether something would undermine the legitimacy of the Court or not seems to be trying to elicit a question about whether it would be appropriate for justices who participated in that litigation to sit on the case rather than recuse and I went down that road yesterday--
Senator Klobuchar: I know, you said you wouldn't recuse.
Judge Barrett: That isn't what I said.
Senator Klobuchar: You’re right, you said you wouldn't announce your decision on recusal and you wouldn't commit to recusing. But again, I think the public has a right to know that now three of these justices have worked on the Republican side on a major, major issue related to a presidential election.
One thing I wanted to revisit quickly, Smiley v. Holm, the reason I asked about that is that this would be unprecedented, when we right now we are in an unprecedented time where we have a President who refuses to commit to a peaceful transfer of power working to undermine the integrity of this election. And yesterday, you wouldn't commit to recuse yourself from the case we just talked about. But now we are considering your confirmation to the highest court in the land in the midst of this election. And in Smiley v. Holm where the Supreme Court held that a governor is part of the legislative process and therefore a legislature cannot unilaterally change election rules, that could be very important because we have a number of swing states where we have a legislature of one Party, governor of the other. And we have this precedent that has been on the books for nearly ninety years. Do you think that that is an established Supreme Court precedent? It said that a governor is part of the legislative process.
Judge Barrett: I actually am not familiar with that case, but it is precedent. Obviously it is a precedent of the court.
Senator Klobuchar: Okay, I wanted to turn to one last issue and that is First Amendment and freedom of the press— near and dear to my heart, my dad was a journalist. He would go everywhere for a good story and cared a lot about freedom of the press. And regrettably, our right to a free and independent press is under assault. We have witnessed unprecedented attacks on journalists and journalism in the past several years. Our President frequently uses his Twitter account to attack news organizations. He has accused the media being of fake news and called them the enemy of the people. Obviously, we also have journalists overseas that are under attack by dictators. I want to pay special tribute to those brave journalists whose dogged pursuit of the truth never wavered despite threats of imprisonment, violence, and even death. Journalists like Jamal Khashoggi and the men and women of the Capital Gazette. Their legacy is proof that fear will not silence facts. The Founders recognized that a free press is vital to a vibrant and strong democracy and that's why we need Supreme Court Justices who understand the importance of protecting the right of journalists.
First, Time v. Sullivan, you know that is a landmark ruling in the support of the First Amendment protections for the press and protecting journalists, unless they say something untrue with actual malice. Justice Thomas has expressed skepticism with that case, writing in his concurrence in McKee v. Cosby that if the Constitution does not require public figures to satisfy an actual malice standard in state law defamation suits, then neither should we. Do you agree with Justice Thomas that the Court should reconsider the actual malice standard because it is inconsistent with the original meaning of the Constitution?
Judge Barrett: Well Senator Klobuchar, I can't really express a view on either New York Times v. Sullivan or Justice Thomas's critique of it without violating the principle that I’ve repeatedly stated that all nominees follow that I can't comment on matters of litigation or grade precedents that the Court has already decided.
Senator Klobuchar: I also want to ask you about how journalists have been deterred from doing their jobs under the threat of jail time after the Supreme Court's 1972 decision in Branzburg v Hayes. Many federal courts of appeals have recognized what is called the reporter's privilege which protects a reporter’s First Amendment right to protect his or her sources from disclosure in certain circumstances. The Seventh Circuit, by the way on which you serve, has rejected a constitutional basis for a reporter’s privilege. Under its original public meaning, does the First Amendment protect a reporter's decision to protect a confidential source?
Judge Barrett: Again, that would be eliciting a legal conclusion from me which I can't answer in a hypothetical form in the hearing. It is also a question, as you point out, that is closely related to one's that are being litigated.
Senator Klobuchar: Okay, one last try. Do you agree that if reporters cannot protect their sources, they are less likely to be able to find confidential witnesses willing to share information, confidential informants willing to share information about issues of public importance?
Judge Barrett: Well Senator, that would both be a policy question, a matter of public policy which I can't express a view on, and presumably also one that might factor into the question of what the First Amendment protects. So again, that is not something that I can give an opinion on in this context.
Senator Klobuchar: Okay. I guess my last thing I will just say is I hope people watching out there are going to follow the tracks of this record and are going to vote. Thank you.