« Verdict with Ted Cruz

Ep. 55 - Becoming Justice Barrett

2020-10-14

Judge Amy Coney Barrett’s Supreme Court confirmation hearings are underway, and straight from the Hill, Senator Ted Cruz has the scoop. Michael Knowles joins the Senator, and together they break down the pitiful performance by Senate Democrats and what is still to come in these consequential proceedings. Plus, did ACB actually hold up Michael’s book during the hearing?

This is an unofficial transcript meant for reference. Accuracy is not guaranteed.
The Supreme Court confirmation hearings have just ended on Capitol Hill, which means that senator crews has got to go. Do his second job, which is to come on over to the studio with this is an extraordinarily consequential week. This could fundamentally reshape the balance of power on the Supreme Court and we're about to talk to a guy who sat through all twelve hours, the hearings. This is verdict with take root. Welcome back the verdict was TED crews, I'm Michael Knolls senator occurs to me as well here about to discuss these Supreme Court confirmation hearings we ve got impeachment. We ve had Covert quarantines, we have the Supreme Court confirmation areas with the possible exe. Sure of murder hornets, you have been at the centre of just about every major story of twenty twenty.
Maybe I don't know, maybe you ve been involved in murder. Hornets too, I dont know well I will say this this that podcast feels reminiscent of the beginnings of verdict in. Anne and spending all day, then in the empty meant trial now and in the judge? Barrett confirmation hearings, and then courting this late in the evening, although it's only what is at nine twenty, nine thirty as compared to midnight or one in the morning, so we're we're. We're more humane than that that then we started. But it is I look it's it's. It's part of what this podcast is all about. His is is too is to try to bring folks inside the battles. Real time is they're playing out in Washington and then and that's what we're doing I know I think in this case to senator maybe some people were watching all of the impeachment hearings. I dont think anybody has been sitting through all twelve hours of the Supreme Court confirmation hearing and frankly, I think a lot of people- and I include my-
often this to some degree dont even really know how this whole process plays out. So I want to get into the specific moments and how we are shaping the process, but I'd like to begin just by zooming out its and asking what eyes today. What is the time I'm going to look like, and is this judge going to be confirmed by the Supreme Court? So I think today was a very consequential day today we now know judge bear it is going to be just a spirit. Today was the first big day questioning so so. The way this display played out the President, his announcement. A couple weeks ago of Judge Bear. It is the nominee. Ah, we had a couple of weeks where she filled out there's a whole elaborate questionnaire that that a supreme Court now many has to fill out to the Senate, that that requires them to turn over any rights. Meetings. They have had a speeches they have given their all. These elaborate questions that any judicial nominee has to submit an and that too
a little bit of time to compile and then the hearings this week. It started yesterday so, but yet today was just opening statement, so everyone, at ten minute opening statement and and judge, bear it had to sit there and listened each of us talk for ten minutes and then She gave her opening statement it. It was a very brief. It was introductory was introducing or family. She had her kids, they are so she introduced her husband and her kid. She had she's got six brothers and sisters, so she introduced them. That was yesterday. So today is one the questioning started and the way at work today, as every senator got thirty minutes of questions, so it alternated Democrat Republican Democratic Republic and thirty minutes each and so Judge bear it is their just answering the questions and the reason I say today as when we know that she's gonna be confirmed is because the Democrats couldn't leg lover. I mean day
that they really had there was no moment the hearing. Where were where they running scored blood. Where were they even put a neck in her eyes? I think she was a fabulous witness. She was calm, she was cool, she was collected. She had and has I think, a very scholarly judicial demeanor. She was unflappable and there were some moments where she could have been forgiven for four flapping and and she didn't. But I think every bit as revealing as the fact that they didn't lay a glove honour is for a lot of them. They didn't even really try What I read today, as is the Democrats, are basically given up. that they know they don't have the votes. They know they're, not gonna, stop they dont have any sub.
indeed issue and so they're going through the motions, but but it actually felt today, like like more than a few of the democratic senators, were basically phoning it in like they had done. They had to fill their thirty minutes, but but they didn't really believe they were gonna get anywhere and in terms of stopping the nomination no early on when judgment was announced as a nominee, you heard some of what I felt were very ugly and politically ill advised attacks on her family and on her religion and now the attacks play very well and fortunately we're not we're not really seeing any more of those. I remember Dick Durban now the number two. great in the Senate. He came out and more or less said that all Democrats could do with slow this thing down a little bit, but ultimately they couldn't do anything to stop. Bear it on the court. So if they're, not gonna love those attacks and the attacks are lobbying aren't working. What are they doing? What was the line of questioning the Democrats
pursuing. So there was an iron aided Durban putting that that message out, because the last time judge bear it was up when she was nominated. The court of appeals. Durban was one of the people who went after her for her faith and and- and he asked her, then this is three years ago if she was an orthodox catholic orthodoxy there, the adjective he is now at I'm, pretty sure that she's member of the Greek Orthodox, a russian orthodox churches so not look you're catholic audible. What is an orthodox catholic other than beyond? I guess, from a Senate demagogue respective someone who actually believes the stuff. I think that's what he meant by it, but I think Hit the nail on the head: she's, not eastern orthodoxy, doesn't have one of those long beards. She is catholic. Injury is worth it meaning. She believes what the catholic church believes. This as opposed to say I heterodox catholic, such as I'm just throwing at an aim here, the democratic presidential nominee, Joe Biden, who said
is that he does not agree with the church on certain issues, I can understand Senator Durban, confusion. You probably doesn't know very many orthodox Catholics, but, as you say, I recall that attack did not play very well for Senator Durban three years ago, and I think he probably we could to caution. Is colleagues now welfare, Stein infamously said with regard to judge bear at three years ago. The dogma lives loudly, and this one and aunt em was a moment of really. I think, contempt and religious bigotry that that backfired. As I'm glad I did I'm glad the reaction was so strong, so some he sent out the marching orders to the Democrats. Dont go down the road of the attacks on faith again, an end at listen, for whatever reason the Democrats when they get talking points, they Victoria, and, and so it was order you're not allowed to attack or on this, and they all stayed away from it. So that's good! I mean that I think they
nervous about the election coming up in a couple of weeks and they didn't wanna tick off catholic voters are people of faith because it's it's persecuting someone, you know maintaining the position that no one of faith can be a judge, is a pretty extreme position and its also unconstitutional in the constitution explicitly the text. The constitution prohibits religious test for anyone serving in public office, given that it what what's interesting as they didn't even really decide to go after her record to go after any thing. The principal talking points that the Democrats are emphasising is attacking the president that they're just using this to save tromp bad Orange man, bad and it's all about Obamacare tall about Obama, care and their argument is that judge Berytus confirm the Supreme Court will strike down Obama care.
and the gazillion people will be denied health care and people with pre. Existing conditions will be denied healthcare and their basically are making its it's you gotta, be impressed at the desk, when that virtually every Democrat says that almost word for word I mean they read from there talking points and arguments there making are not judicial arguments there not actually arguments it's, not the Supreme Court's job to decide them. Listen. Every senator agrees we're going to protect pre existing conditions. Every Republican agrees with that. Every Democrat agrees with that. Now their disagreements on how you protect pre, existing conditions and- and I I think Bonnet Care- has been a train wreck, its driven premiums through the roof and and its very unpopular. But that is a policy question for Congress to
bade? That's? Not the court is not going to decide what's the best system of health care and so one of the main general election arguments. The Democrats are mounting as this pre existing conditions attack and it was striking a number of the Democrats they all but ignored, judge merit they just had there talking points tromp patriot and want everyone to die an end it in any. No judge Barracks, kind of Saturn smiled while it wont, let me know that was not direct to her and her fitness and and and record to serve on the court. I thought, but I thought it was interest doing how half hearted they were in going after they barely tried one healthcare point. I was speaking. To a fairly prominent Democrat operative during the MID terms a couple years ago, and this operative told me that, basically the only winning issue for Democrats was health care and not. Look here by the way, just sort of broad health care reform. Healthcare protections right is the promises and campaigns
are always ruining. Give you a lot of library, stuff and it's gonna make everybody healthier and better, so they keep hammering that home, it's obviously much less contentious than say abortion or war going after somebody's faith or something to that effect what you know on twenty eighteen chuck, humor dropped. Several several million dollars and attack adds against me and the closing week of that my re election campaign and it was all pre existing conditions. It was TED once takeaway coverage Existing conditions. Now we immediately pivoted had him back and said now: we're gonna, protect, pre existing conditions, and you have driven costs through roof and people can afford healthcare on it and it I mean we have always been, very data driven operation and the polling showed that when we counter punched it completely neutralize the attack, but they put hundreds of millions of dollars behind that TAT nationally and twenty eighteen and they're doing it again the cycle? Well
get into those hundreds of millions of dollars, because I agree with you watching. I did much twelve hours of it today, but watching what I did it did seem. Half hearted bottlers Feinstein, went for Ro Verses way that kind of flop. I felt comma Harris flopped I so many of the attacks were weak. The only one that caught my interest from your colleague, the Democrat Sheldon Whitehouse, who launched an attack at the funding of the conservative judicial movement. Basically saying that dark money was behind, the selection of judge bear. It and then he didn't quite explained with that meant. But the conclusion Where's was bear it an illegitimate nominated there's, no way we should confirm Where is all that dark money, similar side? It was a fairly extraordinary, so so Sheldon talked for thirty minutes. He didn't ask judge bear at a single question, so she just said
there, while he put on any had these little charts. He had- and it was interesting bents ass later in the afternoon, referred to it as a beautiful mind presentation, but there's a reason for his presentation, so Social White House has been pushing this for a long time. There's a concerted effort to deal agenda, mice, the court and that's part of his narrative is he says that that secretive corporate billion errors are funding, Republicans and the court is bought and paid for in its illegitimate, and this is connected to their whole effort to pack All this is all shelters objective is to deal agenda mine, the Supreme Court, an aim questioning was immediately after his and that's usually the case in terms Seniority
I normally go between Whitehouse enclosure, and so often I'm off often have a risk a chance to respond a white house and then globetrotters discovered. Its lots alikes when she like says something nasty about May, which is I Amy actually get along quite well, but it, but it makes it may lefties really happy when she attacks me. So she often will China and we're gonna, totally kill her credibility. Now that you say that she knew and she'll get along very well, there never go all the facebook likes so White House. I took the chance to really lay in two as premise as, as you know, in the world of campaign finance reform, so that in this assembly, Sheldon says all the time a democrat sail. The time is big. Money is behind the Republicans, it just happens to be. There's a lot more big money behind Democrats that that, if you want to know where the big money is so, if you look at, for example, in twenty sixteen of the top twenty super pack, don't
in America. Do you know how many gave almost exclusively to Democrats, the top twenty fourteen gave almost exclusively to Democrats. Three gave about E. Lee Democratic Republican and only to the top twenty gave primarily the Republicans overwhelmingly and by the way, the difference in dollars and that cycle twenty. Sixteen cycle, Republicans a hundred and eighty nine million dollars spent supporting their elections. Democrats had four hundred and twenty two million dollars, and it was you know and and and you know Sheldon was bellowing. You know these mysterious, dark many donors- they want something for it. They want something. You don't give that kind of money forgot that when he was, he was as really tempted to jump in and be
Sheldon that their decaffeinated branch of the market that are just as taste just relax their son. So this audience deep breaths. But look if you look at this cycle, the fortune, five hundred overwhelmingly supporting Joe Biden over Donald Trump Wall Street overwhelmingly, boarding. Joe Biden overturned the entire narrative that its big corporate interests supporting republic as it's just not write. What would you have pointed to hear center? I think, is key. I couldn't I couldn't make sense of it- I knew that he was putting on a big show, but the whole time I was watching it. I thought what is the point he's trying to make? You know he had said One raise a lot of money step to. I don't know step. Three you of a judge on the Corbett. Then often the judges disappoint the people who want to point them anyway. I just couldn't get with the point was, but what you are saying is
there's no point about the money, it simply horde of a broader performance to deal agenda minds the corn, yes, and that at its also to set to say the court is bought and paid for, but it's also to justify a democratic power grab and a regulation of speech, and- and so I use my questioning to talk with quite a bit about what the Democrats want to see from left wing. Ah Supreme Court justices. As you know, my new book came out a couple of weeks ago. One vote away how single seat on the Supreme Court can change history, New York Times best seller, I believe, is that correct. It is, and it bit was
number one by some of the country and Amazon, so I made it really lotta people of buying a lot of folks who listen to verdict. Thank you for that. I appreciate that there is a chapter in the book on citizens, United and so my questioning today. I wanted to explain in a lot of folks of heard of citizens united, but they don't know what the cases about they know. Democrats hate it An end, so I explain: Citizens United was at its heart about whether we can criticise politicians and in particular, so what happened? Citizens, you know, It is a small non profit organization based in DC. They made a movie that was critical of Hillary Clinton and the Obama Justice Department went after them and wanted to be able to find them for daring to criticise Hillary Clinton. A movie and the cat
when all the way to the Supreme Court and end there was one exchange at the oral argument, Michael who was really chilling where justice Emma Lido Ass. The lawyer for the Obama Justice depart sad under your theory of the case. Can the government ban books and the Obama Justice Department lawyer said? Yes, yes, the government canning ban books if their critical of a politician and and ultimately the court struck that down five four, but there were four justices ready to say that the government can ban movies and the government can ban books. That's what I tried to do and in in the book one about away as every chapter emphasizes. Look we had four votes to say the govern, never mind with the first amendment says: nevermind free speech. The government has the
our to ban movies are books if they don't like the content of that. That's really terrify and that's what White House in the other Democrats we're trying to build the predicate for they want to be in charge. Frankly of silencing you, silencing may have I would sing anyone who says something they disagree with before we get to mail bag. I do want to get to a male by question. I do have to ask The senator. I know we have urban joking on the right that that the Democrats we're going to pull a Cavanaugh on Judge Barrett that they were going to occur, her of sexual harassment or something like that and then tell me, crazy tell me I'm misheard it. While I was watching today did Amateur Maisie, Verona of Hawaii, actually ask judge bear it if she had sexually harassed anybody
you became a legal adult. Have you ever made? Unwanted requests for sexual favours are committed any verbal or physical harassment or assault of a sexual nature. Now senator who have you ever faced discipline or entered into settlement related to this kind of conduct, Now a senator, so she did and then I will admit it was one of the most incongruous moments like if you were to pick perhaps the least likely person on planet earth to sexual harassed, someone it may well be Judge Amy, bear it. I will say in in Maisie her US defence and I dont often come to make defence. She consistently ask that question of every nominee before her she's done that since she got elect and an end. So it's if you're nominated to be If your nominated
be in anything were Maisie is gonna, be on the committee confirming you. She will ask that same question and I actually respect that. She asked that I mean. I think it is certainly caused a lot of nominees to think twice: Ok, how are they going to answer it and I think it's a reasonable thing for the Senate to Asking- and I think it's fine- that she applies it even handedly and consistently. I think it's actually a good thing that she applies it to everyone a very fine kind word to say about Senator Huron on. I think we are all very pleased that judgment. was able to answer that very quickly. They moved on before, go, and we ve only got a couple minutes left. I do want to get to a couple mailbag questions. This first one is from I promise you. This is not my account. I think it's a listener, a verdict. They account as verdict, sir, no commander of the british Empire, not me what would happen.
the Senate Majority, just refused to fill a Supreme court vacancy for an extended period of time, so not a few months of a campaign. But let's say two years for three years now: look the sea would remain vacant. and you know it does seem we're moving in that direction. I am not sure we will see a Senate filling Supreme Court seats for the opposite parties. President, and it's just judicial nominees. If, for example, we started next year with, but suppose Trump WAN and shimmer took the Senate. I think the odds are pretty high, that that they might not even Phil
Court of appeals judge seats at a minimum. If you had the Senate and the president of opposing parties, there would have to be major compromise on the nominee to get someone through, because I think it has become such a partisan divide in terms of what people are looking for and in judges that I think both parties right now would be. accident took, although to be fair, Republicans, have demonstrated a lot more willingness to confirm democratic nominees, then, by first. That I remember, I think, was Justice Kennedy. But as recently as Justice Kennedy was confirmed unanimously, Justice Ginsburg was confirmed overwhelmingly. Now it seems that that all of these are the or the biggest. ground of all out, looks and soda, my or and Kagan, so both of Obama's appointees, there were number Republicans voted to confirm,
so there were many more republicans I forget. I wasn't there for soda by our Kagan, but there in Grand voted to confirm both of them a mess. When he got Lindsey got so mad at the Cavenaugh thing and any kind of blew up and heads the viral moment fact I told you when Lindsey that my mom texted me and said. Okay, I love Linsey, Graham now that was in Cavanaugh hearing, and in it and by the way my mom is, is quite conservative and I think it's fair to say she did not previously love Lindsey and so his the passion with which he unloaded, but one of the things he said there is. He said he voted to confirm both Saddam Iron Kagan and the Democrats had none of that reciprocity for trash nominees one last question before we go. I know this is a lot of people's minds because they keep asking me about it. This is from coal. Coal is policy student in Wisconsin what
is the difference between original ism and textual as we hear them, terms used as if our synonyms but they're, not send it right so they're not in the simplest difference, is original. Ism refers to the constitution, and textual ism refers to statutes which your federal laws passed by Congress. But it's not the constitution, so but let's unpack that little bit, but that
the simplest way to think about. So a rigid elysium is how do you go about understanding that Lang? The terms of the constitution and original ism is, you should understand the terms based on the original public, meaning not what the framers we're thinking in their heads? Not their subject, intentions correct. So, let's take, for example, the second amendment, the right Keepin bear arms. They, the operative language of the second amendment, is the right of the people to keep and bear arms shall not be infringed, and if you look at Justice Scully as opinion and Heller, which is the landmark second amendment case, it has a great deal of analysis on what the phrase the right of the people was understood by the the american people when, when the constitution, and specifically the bill of rights, the second
was ratified so in one thousand, seven hundred and ninety one. What that and the right of the people it turns out as a term of art, it's used elsewhere in in the bill of rights. It's used the right of the people peaceably to assemble so that clearly an individual right there. It's also you that's the first amendment, the fourth amendment, the right of the people to be secure from unreal it searches and seizures so one as I said earlier, walk through as the right of the people, who is a term of art that always referred to an individual right, something that you as an individual can claim and what Keepin bear arms means not what's. James Madison was thinking, but what the american people when, when it was ratified, understood to be that's original is checked. Chauvinism is how you interpret a statute, a federal law and and
The principle is it's. Actually it has similarities in that it is again the plain plain meaning of the language based on the the public. What understood what a reasonably infer informed observer when understood the language to be now. There's some potential to. June between the two and actually, some of the very last questioning today was from Senator John Kenny. Kennedy, a Republican or got into some of the tension on an interesting in Canada, is a very smart guy. He plays sort of like a Matlock country lawyer, but he's a he gets oh great gray matter and- and I think he was enjoying pushing judge bear it. He was having he was. He was like a pagans he was having so much fun cannabis pushing her on this there some can arguable tension in that textual ism.
Avoid relying on what's called legislative history- and I understand that some of it is you have to go back to how court you used to interpret statutes. If you go back to the nineteen sixties, the nineteen seventies, there were decisions that would start with lead that they basically ignored the language of the law. They ignore. The text of the statute I'd say well here was the legislative intent, here's what senator so and so set on the floor here. He wanted to do so. That's what the statues try to do or here's what this committee report said they were trying to do by the Way committee reports are often written by staffers, who are never elected and they put things in committee reports to info sue litigation later on, so it was a particular way of sort of hiding something in there to influence a case. That's not the law, the United States and so that the leading proponent of texture, listen
As a means of interpreting, federal statues was just a sickly and when he started really teen eighties start in the seventies, but really the nineteen eighties and went on to them and the court of appeals and ninety nineties and two thousands on the Supreme Court. He refused to look at legislative history. Then he said it's illegitimate: it's not the law. I'm not gonna look! Look at it a majority. The Supreme Court doesn't agree with that methodology but Scully. Almost single handedly changed how courts look at statutes. Now every one starts with a text I mean it's really an amazing. You grab any statutory interpretation case from the sixties compared to today its night and day were even the most lefty judges start with the text. They might disregard it, but they at least the analysis begins there and an end so that an eye
That's a much fairer and more predictable wade, decide cases. One of the things you want in a nation of laws is: is predictable outcomes and You know your private citizens you're trying to determine what the law say. The easiest way to do is go look at the text of the law of its clear. That's if you know that's gonna be the answer. You can behave accordingly. If a judge. might follow. The language might not might set aside if he or she disagrees- that's much harder to predict. When you don't know what you are, gonna be deciding some case in the future, and so that's that's textual is in our remaining few seconds here. Speaking of predictable outcomes, do you have any predictions for what will go on during the hearing tomorrow, or is it anyways, guess So tomorrow we can have another round here of questions. It'll be shorter, tomorrow's only twenty minutes, so instead, a thirty minute
and so the day presumably will end several hours earlier, which will be good. I think the dams are run out of steam. I think they ve lost. Lost a lot of their energy. I will play by the way. Michael I've got a credit you one of the better moments in in the hearing was when my colleague John Cornyn asked judge. Barrett said you know, what notes do you have in front of you and she had and she didn't have any binder. She had nothing she was reading from, and she just held up like notepad, and I will say, I'm I'm impressed Michael that that that that she held up what was apparently a page from your book entirely blank and that's what she was relying on. And let me ask you something Michael. How do I write a book on the? U S, Friggin Supreme Court and she reads from Europe. could not my book the theory,
senator you shared so much of your wisdom with made at some point. I am more than happy to brief you on my book. It I'm I'm, really honoured you ve you been, I think, a more direct role in the history of this Supreme Court nomination prior and confirmation process. I am pleased that I could play a modest role as a judge bear it raised what was clearly a page from my blank we will look forward to tomorrow by the way out, reprint him eat. You might want that image on the cover of your book now holding up the than the blank page, at a minimum. That's gonna be like your online add for the book I know, wonder, doesn't count as a blurb. If she didn't say anything out of perhaps perhaps will added to the next edition centre. The black tomorrow, at the hearings. Until then, I'm Michael knows this is verdict with ten
Transcript generated on 2020-10-18.