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Becoming Justice Barrett · The Ben Ferguson Podcast

0:00
Speaker 1: The Supreme Court Confirmation hearings have just ended on Capitol Hill,
0:05
Speaker 1: which means that Senator Cruz has got to go do
0:08
Speaker 1: his second job, which is to come on over to
0:10
Speaker 1: the studio with us. This is an extraordinarily consequential week.
0:15
Speaker 1: This could fundamentally reshape the balance of power on the
0:19
Speaker 1: Supreme Court. And we're about to talk to a guy
0:21
Speaker 1: who sat through all twelve hours of the hearings. This
0:25
Speaker 1: is Verdict with Ted Cruz. Welcome back to Verdict with
0:33
Speaker 1: Ted Cruz. I'm Michael Knowles, Senator. It occurs to me
0:36
Speaker 1: as we sit here about to discuss the Supreme Court
0:39
Speaker 1: Confirmation hearings. We've got impeachment, We've had the COVID quarantines,
0:45
Speaker 1: we have the Supreme Court confirmation hearies. With the possible
0:48
Speaker 1: exception of murder Hornets. You have been at the center
0:52
Speaker 1: of just about every major story of twenty twenty and
0:56
Speaker 1: maybe I don't know, maybe you've been involved in murder
0:57
Speaker 1: Hornets too. I don't know. Well, I will say this
1:02
Speaker 1: this that podcast feels reminiscent of the beginnings of Verdict
1:07
Speaker 1: and and and spending all day then in the impeachment trial,
1:11
Speaker 1: now in the Judge Barrett confirmation hearings and then recording
1:17
Speaker 1: this late in the evening, although it's only what is it,
1:20
Speaker 1: nine twenty nine thirty as compared to midnight or one
1:23
Speaker 1: in the morning, So we're we're we're more humane than
1:26
Speaker 1: that than we started. But it is, uh, look, it's
1:30
Speaker 1: it's it's. Part of what this podcast is all about
1:32
Speaker 1: is to is to try to bring folks inside the
1:35
Speaker 1: battles real time as they're playing out in Washington, and
1:38
Speaker 1: that's what we're doing right now. I think in this
1:41
Speaker 1: case to Senator maybe some people were watching all of
1:45
Speaker 1: the impeachment hearings. I don't think anybody has been sitting
1:48
Speaker 1: through all twelve hours of the Supreme Court confirmation hearings,
1:51
Speaker 1: And frankly, I think a lot of people, and I
1:54
Speaker 1: include myself in this to some degree, don't even really
1:57
Speaker 1: know how this whole process plays out. So I want
2:00
Speaker 1: to get into the specific moments and how you're shaping
2:03
Speaker 1: the process. But I'd like to begin just by zooming
2:05
Speaker 1: out and asking what was today, What is the timeline
2:11
Speaker 1: going to look like? And is this judge going to
2:13
Speaker 1: be confirmed to the Supreme Court. So I think today
2:16
Speaker 1: was a very consequential day today we now know Judge
2:21
Speaker 1: Barrett is going to be Justice Barrett. Today was the
2:24
Speaker 1: first big day of questioning. So the way this is
2:28
Speaker 1: play played out. The President made his announcement a couple
2:32
Speaker 1: of weeks ago of Judge Barrett as the nominee. We
2:35
Speaker 1: had a couple of weeks where she filled out there's
2:38
Speaker 1: a whole elaborate questionnaire that a Supreme Court nominee has
2:42
Speaker 1: to fill out to the Senate that that requires them
2:45
Speaker 1: to turn over any writings they've had, a speeches they've given.
2:49
Speaker 1: They're all these elaborate questions that any judicial nominee has
2:52
Speaker 1: to submit and that takes a little bit of time
2:55
Speaker 1: to compile. And then the hearing started. This week started yesterday,
3:01
Speaker 1: so but yesterday was just opening statements. So everyone had
3:04
Speaker 1: a ten minute opening statement and Judge Barrett had to
3:07
Speaker 1: sit there and listen to each of us talk for
3:09
Speaker 1: ten minutes. And then she gave her opening statement and
3:13
Speaker 1: it was a very brief. It was introductory, and it
3:17
Speaker 1: was introducing her family. She had her kids there, so
3:19
Speaker 1: she introduced her husband and her kids she had. She's
3:22
Speaker 1: got six brothers and sisters, so she introduced them. That
3:25
Speaker 1: was yesterday, So today is when the questioning started and
3:30
Speaker 1: the way it worked today as every senator got thirty
3:32
Speaker 1: minutes of questioning, so it alternated Democrat Republican, Democrat Republican
3:38
Speaker 1: thirty minutes to each and so Judge Barrett is there
3:40
Speaker 1: just answering the questions. And the reason I say today
3:43
Speaker 1: as when we know that she's going to be confirmed,
3:47
Speaker 1: is because the Democrats couldn't lay a glove on her.
3:50
Speaker 1: I mean they that they really had. There was no
3:54
Speaker 1: moment in the hearing where they not even scored blood,
3:58
Speaker 1: where they even put a nick in her. I think
4:02
Speaker 1: she was a fabulous witness. She was calm, she was cool,
4:06
Speaker 1: she was collected. She had and has I think a
4:10
Speaker 1: very scholarly, a very judicial demeanor. She was unflappable, and
4:15
Speaker 1: there were some moments where she could have been forgiven
4:19
Speaker 1: for flapping and she didn't. But I think every bit
4:25
Speaker 1: as revealing as the fact that they didn't lay a
4:27
Speaker 1: glove on her is for a lot of them, they
4:30
Speaker 1: didn't even really try. What I read today as is
4:35
Speaker 1: the Democrats have basically given up that they know they
4:38
Speaker 1: don't have the votes, they know they're not going to
4:40
Speaker 1: stop her, they don't have any substantive issue, and so
4:43
Speaker 1: they're going through the motions. But but it actually felt
4:47
Speaker 1: today like like more than a few of the Democratic
4:50
Speaker 1: senators were basically phoning it in like they had to,
4:53
Speaker 1: they had to fill their thirty minutes, but they didn't
4:56
Speaker 1: really believe they were going to get anywhere in terms
4:59
Speaker 1: of stopping the nomination. I know, early on when Judge
5:02
Speaker 1: Barrett was announced in the nominee, you heard what I
5:06
Speaker 1: felt were very ugly and politically ill advised attacks on
5:10
Speaker 1: her family and on her religion, and the attacks didn't
5:13
Speaker 1: play very well. And fortunately we're not really seeing any
5:17
Speaker 1: more of those. I remember Dick Durban, now the number
5:19
Speaker 1: two Democrat in the Senate. He came out and more
5:22
Speaker 1: or less said that all Democrats could do was slow
5:26
Speaker 1: this thing down a little bit, but ultimately they couldn't
5:28
Speaker 1: do anything to stop Barrett on the court. So if
5:31
Speaker 1: they're not going to lob those attacks, and the attacks
5:34
Speaker 1: they're lobbing aren't working, what are they doing? What was
5:37
Speaker 1: the line of questioning that the Democrats were pursuing. So
5:40
Speaker 1: there was an iron needed Durban putting that message out
5:45
Speaker 1: because the last time Judge Barrett was up, when she
5:47
Speaker 1: was nominated at the Court of Appeals. Durban was one
5:50
Speaker 1: of the people who went after her for her faith,
5:52
Speaker 1: and he asked her then, this is three years ago,
5:56
Speaker 1: if she was an Orthodox Catholic. Orthodox was the adjective
6:01
Speaker 1: he used. Now, I'm pretty sure that she's not a
6:05
Speaker 1: member of the Greek Orthodox or Russian Orthodox churches, So
6:09
Speaker 1: I'm not Look, you're Catholic. What is an Orthodox Catholic
6:13
Speaker 1: other than beyond I guess from a Senate Democrats perspective,
6:17
Speaker 1: someone who actually believes the stuff. I think that's what
6:19
Speaker 1: he meant by it. But I think you've hit the
6:21
Speaker 1: nail on the head. She's not Eastern Orthodox. She doesn't
6:23
Speaker 1: have one of those long beards. She is Catholic, and
6:26
Speaker 1: she's Orthodox, meaning she believes what the Catholic Church believes.
6:29
Speaker 1: This would be as opposed to say, a Heterodox Catholic
6:32
Speaker 1: such as I'm just throwing out a name here, the
6:34
Speaker 1: Democratic presidential nominee Joe Biden, who says that he does
6:38
Speaker 1: not agree with the Church on certain issues. So I
6:41
Speaker 1: can understand Senator Durban's confusion. He probably doesn't know very
6:45
Speaker 1: many Orthodox Catholics. But as you say, I recall that
6:48
Speaker 1: attack did not play very well for Senator Durban three
6:51
Speaker 1: years ago, and I think he probably wanted to caution
6:53
Speaker 1: his colleagues now well. Feinstein infamously said, with regarded Judge
6:58
Speaker 1: Barrett three years ago, the dogma lives loudly in this one.
7:03
Speaker 1: And it was a moment of really I think contempt
7:07
Speaker 1: and religious bigotry that that backfired, as I'm glad it did.
7:11
Speaker 1: I'm glad the reaction was so strong. So somebody sent
7:14
Speaker 1: out the marching orders to the Democrats, don't go down
7:17
Speaker 1: the road of the attacks on faith again and listen.
7:22
Speaker 1: For whatever reason, the Democrats, when they get talking points,
7:25
Speaker 1: they stick to them. And so it was order, you're
7:28
Speaker 1: not allowed to attacker on this, and they all stayed
7:30
Speaker 1: away from it. So that's good. I mean that. I
7:35
Speaker 1: think they were nervous about the election coming up in
7:37
Speaker 1: a couple of weeks, and they didn't want to tick
7:39
Speaker 1: off Catholic voters or people of faith because it's it's
7:44
Speaker 1: persecuting someone, you know. Maintaining the position that no one
7:48
Speaker 1: of faith can be a judge is a pretty extreme position,
7:51
Speaker 1: and it's also on constitutional I mean the Constitution explicitly,
7:54
Speaker 1: the text of the Constitution prohibits a religious test for
7:57
Speaker 1: anyone serving in public office. Given that, what's interesting is
8:02
Speaker 1: they didn't even really decide to go after her record,
8:06
Speaker 1: to go after anything. The principal talking points that the
8:10
Speaker 1: Democrats are emphasizing is attacking the President. That they're just
8:15
Speaker 1: using this to say Trump, Trump bad, Orange Man bad,
8:19
Speaker 1: and it's all about Obamacare. It's all about Obamacare. And
8:23
Speaker 1: their argument is that if Judge Verridis confirm, the Supreme
8:31
Speaker 1: Court will strike down Obamacare, and a gazillion people will
8:36
Speaker 1: be denied healthcare and people with pre existing conditions will
8:39
Speaker 1: be denied healthcare. And they basically are making it's You've
8:44
Speaker 1: got to be impressed at the discipline that virtually every
8:46
Speaker 1: Democrat says that almost word for word. I mean, they
8:49
Speaker 1: read from their talking points, and the arguments they're making
8:54
Speaker 1: are not judicial arguments. They're not actually arguments. It's not
8:59
Speaker 1: the Supreme Courts to decide them. Listen, every Senator agrees
9:04
Speaker 1: we're going to protect pre existing conditions. Every Republican agrees
9:07
Speaker 1: with that, Every Democrat agrees with that. Now their disagreements
9:11
Speaker 1: on how you protect pre existing conditions. And I think
9:15
Speaker 1: Obamacare has been a train wreck. It's driven premiums through
9:19
Speaker 1: the roof, and it's very unpopular, but that is a
9:23
Speaker 1: policy question for Congress to debate. That's not the Court
9:27
Speaker 1: is not going to decide what's the best system of healthcare.
9:32
Speaker 1: And so one of the main general election arguments the
9:35
Speaker 1: Democrats are mounting is this pre existing conditions attack. And
9:38
Speaker 1: it was striking a number of the Democrats. They all
9:41
Speaker 1: but ignored Judge Barrett. They just had their talking points
9:45
Speaker 1: Trump pat you and wants everyone to die and it,
9:49
Speaker 1: and you know, Judge Barrett just kind of sat there
9:51
Speaker 1: and smiled. Well, I mean, you know, that was not
9:54
Speaker 1: directed to her and her fitness and record to serve
9:58
Speaker 1: on the court, I thought, But I thought it was
10:01
Speaker 1: interesting how halfhearted they were and going after her. They
10:04
Speaker 1: barely tried well on the healthcare point. I was speaking
10:07
Speaker 1: to a fairly prominent Democrat operative during the mid terms
10:11
Speaker 1: a couple of years ago, and this operative told me
10:14
Speaker 1: that basically the only winning issue for Democrats was healthcare
10:18
Speaker 1: and not Obamacare, by the way, just sort of broad
10:20
Speaker 1: healthcare reform, healthcare protections, right, because the promises on the
10:24
Speaker 1: campaign trailer always We're going to give you a lot
10:26
Speaker 1: of free stuff, and it's going to make everybody healthier
10:29
Speaker 1: and better, So they keep hammering that home. It's obviously
10:32
Speaker 1: much less contentious than say abortion or going after somebody's
10:36
Speaker 1: faith or something to that effect. Well, you know, in
10:38
Speaker 1: twenty eighteen, Chuck Schumer dropped several million dollars in attack
10:42
Speaker 1: ads against me in the closing week of my reelection campaign,
10:46
Speaker 1: and it was all pre existing conditions. It was ted
10:50
Speaker 1: once to takeaway coverage preexisting conditions. Now we immediately pivoted
10:53
Speaker 1: and hit him back and said, no, we're going to
10:55
Speaker 1: protect preexisting conditions. And you've driven costs through the roof
10:58
Speaker 1: and people can't afford health here and it. I mean,
11:01
Speaker 1: we have always been a very data driven operation, and
11:05
Speaker 1: the polling showed that when we counterpunched, it completely neutralized
11:09
Speaker 1: the attack. But they put hundreds of millions of dollars
11:12
Speaker 1: behind that attack nationally in twenty eighteen, and they're doing
11:15
Speaker 1: it again this cycle. Well, I want to get into
11:18
Speaker 1: those hundreds of millions of dollars because I agree with
11:20
Speaker 1: you watching I didn't watch twelve hours of it today,
11:22
Speaker 1: but watching what I did, it did seem halfhearted. Senator
11:26
Speaker 1: Feinstein went for a row versus Wade that kind of flopped.
11:29
Speaker 1: I felt Kamala Harris flopped. I just felt so many
11:31
Speaker 1: of the attacks were weak. The only one that caught
11:34
Speaker 1: my interest was from your colleague, the Democrat Sheldon Whitehouse,
11:38
Speaker 1: who launched an attack at the funding of the conservative
11:43
Speaker 1: judicial movement, basically saying that dark money was behind the
11:47
Speaker 1: selection of Judge Barrett. And then he didn't quite explain
11:50
Speaker 1: what that meant. But the conclusion, of course was Barrett
11:53
Speaker 1: is an illegitimate nominee and there's no way we should
11:56
Speaker 1: confirm her. Where is all that dark money? Senator? So
12:00
Speaker 1: I it was a fairly extraordinary So Sheldon talked for
12:05
Speaker 1: thirty minutes. He didn't ask Judge Barrett a single question,
12:09
Speaker 1: So she just sat there while he put on and
12:11
Speaker 1: he had these little charts he had and it was interesting.
12:14
Speaker 1: Ben Sass later in the afternoon referred to it as
12:17
Speaker 1: a beautiful mind presentation. But there's a reason for his presentation.
12:25
Speaker 1: So white House has been pushing this for a long time.
12:31
Speaker 1: There's a concerted effort to delegitimize the court, and that's
12:35
Speaker 1: part of his narrative, is that he says that that
12:38
Speaker 1: secretive corporate billionaires are funding Republicans, and the Court is
12:45
Speaker 1: bought and paid for, and it's illegitimate. And this is
12:48
Speaker 1: connected to their whole effort to pack the court. This
12:52
Speaker 1: is all Sheldon's objective is to delegitimize the Supreme Court.
12:56
Speaker 1: And my questioning was immediately after his. And that's usually
13:01
Speaker 1: the case in terms of the seniority. I normally go
13:05
Speaker 1: between white House and Klobuchar, and so often I'm often
13:10
Speaker 1: have a chance to respond to white House, and then
13:13
Speaker 1: Klobuchar is discovered. She gets lots of likes when she
13:16
Speaker 1: likes says something nasty about me, which is Amy and
13:18
Speaker 1: I actually get along quite well, but it makes it
13:21
Speaker 1: makes lefties really happy when she attacks me. So she
13:23
Speaker 1: often will chime, you're going to totally kill her credibility.
13:26
Speaker 1: Now that you say that you and she get along
13:28
Speaker 1: very well. There go all the Facebook likes. So white
13:31
Speaker 1: House I took the chance to really lay into his
13:34
Speaker 1: premise as as you know, in the world of campaign
13:38
Speaker 1: finance reforms. So and this is something Sheldon says all
13:40
Speaker 1: the time, but Democrats say all the time is big
13:42
Speaker 1: money is behind the Republicans. It just happens to be.
13:46
Speaker 1: There's a lot more big money behind Democrats. That that
13:48
Speaker 1: if you want to know where the big money is.
13:51
Speaker 1: So if you look at, for example, in twenty sixteen,
13:56
Speaker 1: of the top twenty superpack donors in America, do you
14:00
Speaker 1: know how many gave almost exclusively to Democrats. Of the
14:04
Speaker 1: top twenty fourteen gave almost exclusively to Democrats, three gave
14:08
Speaker 1: about evenly Democrat and Republican, and only two of the
14:12
Speaker 1: top twenty gave primarily to Republicans. It's overwhelmingly and by
14:17
Speaker 1: the way, the difference in dollars and that cycle twenty
14:19
Speaker 1: sixteen cycle h Republicans had one hundred and eighty nine
14:24
Speaker 1: million dollars spent supporting their elections. Democrats had four hundred
14:28
Speaker 1: and twenty two million dollars. And it was you know,
14:30
Speaker 1: and and and you know, Sheldon was bellowing, you know,
14:33
Speaker 1: these mysterious dark money donors, they want something for it,
14:37
Speaker 1: they want something. You don't give that kind of money
14:40
Speaker 1: for nothing. I mean, he was, he was, I was
14:41
Speaker 1: really tempted to jump in and be you know, Sheldon,
14:44
Speaker 1: that they're decaffeinated brands of the market that are just
14:47
Speaker 1: as tasty just to relax their son. But look, if
14:54
Speaker 1: you look at this cycle, the fortune five hundred overwhelmingly
14:59
Speaker 1: supporting Joe Biden over Donald Trump. Wall Street overwhelmingly supporting
15:03
Speaker 1: Joe Biden over Trump. The entire narrative that it's big
15:09
Speaker 1: corporate interests supporting Republicans. It's just not right. What you've
15:15
Speaker 1: pointed to here, Senator, I think is key because I couldn't.
15:18
Speaker 1: I couldn't make sense of it. I knew that he
15:20
Speaker 1: was putting on a big show, but the whole time
15:22
Speaker 1: I was watching it, I thought, what is the point
15:24
Speaker 1: he's trying to make? You know, he had step one
15:27
Speaker 1: raise a lot of money. Step two, I don't know.
15:31
Speaker 1: Step three you have a judge on the court, but
15:33
Speaker 1: then often the judges disappoint the people who want to
15:35
Speaker 1: appoint them. Anyway, I just couldn't get what the point was.
15:37
Speaker 1: But what you're saying is there's no point about the money.
15:40
Speaker 1: It's simply part of a broader performance to delegitimize the court. Yes,
15:47
Speaker 1: and that, and it's also to say the court has
15:50
Speaker 1: bought and paid for. But it's also to justify a
15:54
Speaker 1: democratic power grab and a regulation of speech. And so
15:58
Speaker 1: I used my questioning to talk quite a bit about
16:02
Speaker 1: what the Democrats want to see from left wing Supreme
16:07
Speaker 1: Court justices. As you know, my new book came out
16:10
Speaker 1: a couple of weeks ago, One Vote Away, How a
16:12
Speaker 1: single seat on the Supreme Court can change history? A
16:14
Speaker 1: New York Times bestseller, I believe, is that correct? It is,
16:17
Speaker 1: and it was the number one bestseller in the country
16:19
Speaker 1: on Amazon, So I mean it really A lot of
16:21
Speaker 1: people have been buying it. A lot of folks who
16:23
Speaker 1: listened to Verdict, thank you for that. I appreciate that
16:27
Speaker 1: there's a chapter in the book on Citizens United. And
16:31
Speaker 1: so my questioning today, I wanted to explain, you know,
16:35
Speaker 1: a lot of folks have heard of Citizens United, but
16:37
Speaker 1: they don't know what the case is about. They know
16:39
Speaker 1: Democrats hate it, and so I explain Citizens United was
16:44
Speaker 1: at its heart about whether we can criticize politicians, and
16:50
Speaker 1: in particular, so what happened. Citizens United is a small
16:53
Speaker 1: nonprofit organization based in DC. They made a movie that
16:58
Speaker 1: was critical of Hillary Clinton, and the Obama Justice Department
17:01
Speaker 1: went after them and wanted to be able to find
17:05
Speaker 1: them for daring to criticize Hillary Clinton in a movie.
17:09
Speaker 1: And the case went all the way to the Supreme Court,
17:12
Speaker 1: and there was one exchange at the oral argument Michael
17:15
Speaker 1: that was really chilling. Where Justice sam Alito asked the
17:20
Speaker 1: lawyer for the Obama Justice Department, said, under your theory
17:24
Speaker 1: of the case, can the government ban books? And the
17:30
Speaker 1: Obama Justice Department lawyer said, yes, yes, the government can
17:34
Speaker 1: ban books if they're critical of a politician. And ultimately
17:39
Speaker 1: the court struck that down five to four. But there
17:44
Speaker 1: were four justices ready to say that the government can
17:48
Speaker 1: ban movies and the government can ban books. And it's
17:52
Speaker 1: what I tried to do in the book, want to
17:55
Speaker 1: vote away, as every chapter emphasizes, Look, we had four
17:58
Speaker 1: votes to say the government, never mind what the First
18:01
Speaker 1: Amendment says, never mind free speech. The government has the
18:05
Speaker 1: power to ban movies or books if they don't like
18:07
Speaker 1: the content of them. That's really terrified. And that's what
18:11
Speaker 1: white House and the other Democrats were trying to build
18:14
Speaker 1: the predicate for. They want to be in charge, frankly,
18:17
Speaker 1: of silencing you, of silencing me, of silencing anyone who
18:20
Speaker 1: says something they disagree with. Before we get to mailbag,
18:23
Speaker 1: I do want to get to a mailbag question. I
18:25
Speaker 1: do have to ask this though, Senator, I know we
18:28
Speaker 1: had all been joking on the right that the Democrats
18:30
Speaker 1: were going to pull a Cavanaugh on Judge Barrett that
18:34
Speaker 1: they were going to accuse her of sexual harassment or
18:37
Speaker 1: something like that, and then tell me I'm crazy, tell
18:40
Speaker 1: me I misheard it while I was watching today. Did
18:43
Speaker 1: Senator Mazie Harrono of Hawaii actually ask Judge Barrett if
18:48
Speaker 1: she had sexually harassed anybody since you became a legal adult.
18:52
Speaker 1: Have you ever made unwanted requests for sexual favors or
18:57
Speaker 1: committed any verbal or physical harassment assault of a sexual nature? No,
19:01
Speaker 1: Senator Horono. Have you ever faced discipline or entered into
19:05
Speaker 1: a settlement related to this kind of conduct? No, Senator.
19:11
Speaker 1: So she did, and I will admit it was one
19:14
Speaker 1: of the most incongruous moments. Like, if you were to
19:18
Speaker 1: pick perhaps the least likely person on planet Earth to
19:22
Speaker 1: sexually harass someone, it may well be Judge Amy Coney Barrett,
19:27
Speaker 1: I will say in Mazie Horono's defense, and I don't
19:32
Speaker 1: often come to Mazie's defense. She consistently asked that question
19:40
Speaker 1: of every nominee before her, and she's done that since
19:43
Speaker 1: she got elected. And so it's if you're nominated to
19:48
Speaker 1: be a judge, if you're nominated to be in anything
19:52
Speaker 1: where Mazie is going to be on the committee confirming you,
19:54
Speaker 1: she will ask that same question. And I actually respect
19:58
Speaker 1: that she asked that. I mean, I think it certainly
20:01
Speaker 1: caused a lot of nominees to think twice about, Okay,
20:05
Speaker 1: how are they going to answer it? And look, I
20:09
Speaker 1: think it's a reasonable thing for the Senate to ask,
20:11
Speaker 1: and I think it's fine that she applies it even
20:14
Speaker 1: handedly and consistently. I think it's actually a good thing
20:17
Speaker 1: that she applies it to everyone. Well, a very fine
20:20
Speaker 1: kind word to say about Senator her own. And I
20:22
Speaker 1: think we're all very pleased that Judge Barrett was able
20:25
Speaker 1: to answer that very quickly. They moved on before we go,
20:29
Speaker 1: we've only got a couple of minutes left. I do
20:31
Speaker 1: want to get to a couple of mail bag questions.
20:34
Speaker 1: This first one is from I promise you this is
20:37
Speaker 1: not my account. I think it's a listener or verdict.
20:40
Speaker 1: The account is verdict Sir Noel's commander of the British Empire,
20:44
Speaker 1: not me. What would happen if the Senate majority just
20:48
Speaker 1: refused to fill a Supreme Court vacancy for an extended
20:52
Speaker 1: period of time, so not a few months of a campaign,
20:54
Speaker 1: but let's say two years or three years, look, the
20:58
Speaker 1: seat would remain vacant. You know, it does seem we
21:02
Speaker 1: are moving in that direction where I am not sure
21:06
Speaker 1: we will see a Senate filling Supreme Court seats for
21:10
Speaker 1: the opposite parties president, and it's just judicial nominees. If,
21:17
Speaker 1: for example, we started next year with let's suppose Trump
21:22
Speaker 1: won and Schumer took the Senate, I think the odds
21:26
Speaker 1: are pretty high that they might not even fill any
21:28
Speaker 1: Court of Appeals judge seats. At a minimum, if you
21:33
Speaker 1: had the Senate and the president of opposing parties, there
21:36
Speaker 1: would have to be major compromise on the nominee to
21:40
Speaker 1: get someone through, because I think it has become such
21:44
Speaker 1: a partisan divide in terms of what people are looking
21:48
Speaker 1: for in judges that I think both parties right now
21:54
Speaker 1: would be hesitant to although to be fair, Republicans have
21:59
Speaker 1: demonstrate did a lot more willingness to confirm Democratic nominees
22:05
Speaker 1: than vice versa. I remember, I think it was Justice Kennedy,
22:09
Speaker 1: but as recently as Justice Kennedy was confirmed unanimously, Justice
22:13
Speaker 1: Ginsberg was confirmed overwhelmingly. Now it seems that all of
22:18
Speaker 1: these are the are the biggest battleground of all well
22:21
Speaker 1: looks and Soda Mayor and Kagan. So both of Obama's appointees,
22:24
Speaker 1: there were a number of Republicans that voted to confirm them.
22:27
Speaker 1: So there were many more Republicans I forget. I wasn't
22:30
Speaker 1: there for Sodomayor and Kagan, but so Lindsay Graham voted
22:33
Speaker 1: to confirm both of them. You remember when he got
22:36
Speaker 1: Lindsay got so mad at the Kavanaugh thing, and he
22:39
Speaker 1: kind of blew up and had sort of the viral moment.
22:42
Speaker 1: In fact, I told you when Lindsay did that, my
22:45
Speaker 1: mom texted me and said, Okay, I love Lindsay Graham.
22:47
Speaker 1: Now that was in the Kavanaugh hearing it And by
22:52
Speaker 1: the way, my mom is quite conservative, and I think
22:56
Speaker 1: it's fair to say she did not previously lovely. And
23:01
Speaker 1: so the passion with which he unloaded. But one of
23:04
Speaker 1: the things he said there is he said he voted
23:06
Speaker 1: to confirm both Sodamar and Kagan, and the Democrats had
23:10
Speaker 1: none of that reciprocity for Trump's nominees. One last question
23:14
Speaker 1: before we go. I know this is on a lot
23:16
Speaker 1: of people's minds because they keep asking me about it.
23:19
Speaker 1: This is from coal. Coal is a poly sized student
23:22
Speaker 1: in Wisconsin. What is the difference between originalism and textualism.
23:29
Speaker 1: We hear these terms use as if they are synonyms,
23:32
Speaker 1: but they're not synonyms, right, So they're not. And the
23:35
Speaker 1: simplest difference is originalism refers to the Constitution and textualism
23:40
Speaker 1: refers to statutes, which are federal laws passed by Congress.
23:44
Speaker 1: But it's not the Constitution. So let's unpack that a
23:48
Speaker 1: little bit. But that's the simplest way to think about it.
23:51
Speaker 1: So originalism is, how do you go about understanding the
23:58
Speaker 1: lang the terms of the Constitution should an originalism is
24:01
Speaker 1: you should understand the terms based on the original public meaning,
24:06
Speaker 1: not what the framers were thinking in their heads, not
24:10
Speaker 1: their subject the intentions correct. So let's take for example,
24:15
Speaker 1: the Second Amendment, the right to keep in bear arms.
24:18
Speaker 1: The operative language of the Second Amendment is the right
24:21
Speaker 1: of the people to keep in bear arms shall not
24:23
Speaker 1: be infringed. And if you look at Justice Scalia's opinion
24:28
Speaker 1: in Heller, which is the landmark Second Amendment case, it
24:31
Speaker 1: has a great deal of analysis on what the phrase
24:35
Speaker 1: the right of the people was understood by the American
24:40
Speaker 1: people when the Constitution and specifically the Bill of Rights.
24:44
Speaker 1: The Second Amendment was ratified, so in seventeen ninety one.
24:46
Speaker 1: What that and the right of the people, It turns
24:48
Speaker 1: out as a term of art, it's used elsewhere in
24:54
Speaker 1: the Bill of Rights, it's used the right of the
24:56
Speaker 1: people peaceably to assemble, so that it's clear an individual
25:00
Speaker 1: right there. It's also you. That's in the First Amendment,
25:03
Speaker 1: the Fourth Amendment, the right of the people to be
25:06
Speaker 1: secure from unreasonable searches and seizures. So one of the
25:10
Speaker 1: things Scalia walked through is the right of the people.
25:12
Speaker 1: Who is a term of art that always referred to
25:14
Speaker 1: an individual right, something that you, as an individual can claim.
25:20
Speaker 1: And what keeping bare arms means not what James Madison
25:26
Speaker 1: was thinking, but what the American people, when when it
25:28
Speaker 1: was ratified, understood it to be. That's originalism. Textualism is
25:33
Speaker 1: how you interpret a statute, a federal law, and the
25:41
Speaker 1: principle is it's actually it has similarities, and that it
25:45
Speaker 1: is again the plain, plain meaning of the language based
25:51
Speaker 1: on the public what was understood, what a reasonably informed
25:57
Speaker 1: observer what understood the language to be. Now there's some
26:02
Speaker 1: potential tension between the two and actually Some of the
26:05
Speaker 1: very last questioning today was from Senator John Kenny or Kennedy,
26:10
Speaker 1: a Republican, who got into some of the tension on it.
26:12
Speaker 1: And it's interesting, you know, Kennedy's a very smart guy.
26:15
Speaker 1: He kind of plays sort of like a Matlock country lawyer,
26:19
Speaker 1: but he's he's got some real great gray matter. And
26:23
Speaker 1: I think he was enjoying pushing Judge Barrett. He was
26:26
Speaker 1: having he was he was like a pig and slop.
26:29
Speaker 1: He was having so much fun kind of just pushing
26:32
Speaker 1: her on this. There is some arguable tension in that
26:38
Speaker 1: textualism avoids relying on what's called legislative history. And to
26:44
Speaker 1: understand that some of it is you have to go
26:46
Speaker 1: back to how courts you used to interpret statutes. If
26:48
Speaker 1: you go back to the nineteen sixties the nineteen seventies,
26:53
Speaker 1: there were decisions that would start with they'd basically ignore
26:57
Speaker 1: the language of the law, they'd ignore the text of
27:01
Speaker 1: the statue, and they'd say, well, here was the legislative intent,
27:05
Speaker 1: here's what Senator so and so said on the floor
27:08
Speaker 1: he wanted to do, so that's what the statutes trying
27:11
Speaker 1: to do, or here's what this committee report said. They
27:14
Speaker 1: were trying to do. By the way, committee reports are
27:18
Speaker 1: often written by staffers who are never elected, and they'll
27:21
Speaker 1: put things in committee reports to influence litigation later on.
27:26
Speaker 1: So it was a particular way of sort of hiding
27:29
Speaker 1: something in there to influence a case that's not the
27:33
Speaker 1: law of the United States. And so the leading proponent
27:36
Speaker 1: of textualism as a means of interpreting federal statues was
27:41
Speaker 1: Justice Scalia. And when he started really the nineteen eighties,
27:45
Speaker 1: started in the seventies, but really the nineteen eighties, and
27:48
Speaker 1: went onto the Court of Appeals in the nineteen nineties
27:50
Speaker 1: and two thousands on the Supreme Court, he refused to
27:54
Speaker 1: look at legislative history and he said it's illegitimate, it's
27:57
Speaker 1: not the law. I'm not going to look at it.
28:00
Speaker 1: A majority of the Supreme Court doesn't agree with that methodology.
28:05
Speaker 1: But Scalia almost single handedly changed how courts look at statutes.
28:09
Speaker 1: Now everyone starts with a text now, I mean, it's
28:12
Speaker 1: really an amazing If you grab any statutory interpretation case
28:16
Speaker 1: from the sixties compared to today, it's night and day.
28:20
Speaker 1: Where even the most lefty judges start with the text.
28:22
Speaker 1: They might disregard it, but they at least the analysis
28:27
Speaker 1: begins there, and so that and I think that's a
28:30
Speaker 1: much fairer and more predictable way to decide cases. One
28:35
Speaker 1: of the things you want in a nation of laws
28:41
Speaker 1: is predictable outcomes. And you know, if you're a private
28:46
Speaker 1: citizens you're trying to determine what's the law say, the
28:48
Speaker 1: easiest way to do it is go look at the
28:50
Speaker 1: text of the law and if it's clear that, if
28:52
Speaker 1: you know that's going to be the answer, you can
28:55
Speaker 1: behave accordingly. If a judge might follow the language, might not,
29:00
Speaker 1: might set it aside if he or she disagrees. That's
29:02
Speaker 1: much harder to predict when you don't know what judge
29:05
Speaker 1: is going to be deciding some case in the future.
29:07
Speaker 1: And so that's that's textualism in our remaining few seconds here,
29:12
Speaker 1: speaking of predictable outcomes, do you have any predictions for
29:16
Speaker 1: what we'll go on during the hearings tomorrow or is
29:19
Speaker 1: it anybody's guess? So tomorrow we're gonna have another round
29:22
Speaker 1: to hear of questions. It'll be shorter tomorrow, it's only
29:25
Speaker 1: twenty minutes so instead of thirty minute round. So the
29:28
Speaker 1: day presumably will end several hours earlier, which will be good.
29:34
Speaker 1: I think the Dems have run out of steam. I
29:37
Speaker 1: think they've lost lost a lot of their energy. I
29:44
Speaker 1: will say, by the way, Michael, I've got to credit you.
29:46
Speaker 1: One of the better moments and in the hearing, was
29:48
Speaker 1: when my colleague John Cornan asked Judge Barrett said, you know,
29:52
Speaker 1: what notes do you have in front of you? And
29:54
Speaker 1: she hadn't. She didn't have any binder, she had nothing
29:57
Speaker 1: she was reading from, and she just held up a
30:00
Speaker 1: blank notepad. And I will say, I'm impressed, Michael, that
30:04
Speaker 1: that that she held up what was apparently a page
30:07
Speaker 1: from your book. It was entirely blank, and that's what
30:10
Speaker 1: she was relying on. And let me sk you something, Michael,
30:13
Speaker 1: how do I write a book on the US friggin
30:17
Speaker 1: Supreme Court and she reads from your book and not
30:19
Speaker 1: my book at the hearing. You know, a senator, you've
30:23
Speaker 1: shared so much of your wisdom with me at some point,
30:26
Speaker 1: I'm more than happy to brief you on my book.
30:29
Speaker 1: I'm really honored you've you've played, i think a more
30:32
Speaker 1: direct role in the history of this Supreme Court nomination
30:36
Speaker 1: and confirmation process. I am pleased that I could play
30:39
Speaker 1: a modest role as a judge. Barrett raised what was
30:43
Speaker 1: clearly a page from my blank book. We will look
30:46
Speaker 1: forward to tomorrow. By the way out a reprint. You
30:49
Speaker 1: might want that image on the cover of your book
30:51
Speaker 1: now for holding up the blank page. At a minimum,
30:55
Speaker 1: that's got to be like your online ad for the book.
30:57
Speaker 1: I know, I wonder does it count as a blurb
30:59
Speaker 1: if she didn't say anything out of Perhaps perhaps we'll
31:01
Speaker 1: add it to the next edition, Senator Best of Black
31:05
Speaker 1: tomorrow at the hearings. Until then, I'm Michael Knowles. This
31:08
Speaker 1: is Verdict with Ted Cruz. This episode of Verdict with
31:20
Speaker 1: Ted Cruz is being brought to you by Jobs, Freedom
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