1 00:00:02,533 --> 00:00:05,100 JUDY WOODRUFF: It is one of the most important choices a president makes. And, in this critical 2 00:00:05,100 --> 00:00:10,100 moment, the stakes are high for the future of the U.S. Supreme Court. 3 00:00:12,500 --> 00:00:15,200 John Yang examines President Trump's nomination and how it comes with the election as a backdrop. 4 00:00:17,633 --> 00:00:21,366 JOHN YANG: Democratic vice presidential nominee Kamala Harris led her party's criticism of 5 00:00:22,533 --> 00:00:25,100 Supreme Court nominee Amy Coney Barrett today. 6 00:00:25,100 --> 00:00:28,133 SEN. KAMALA HARRIS (D-CA), Vice Presidential Candidate: If nothing else, the voters should 7 00:00:28,133 --> 00:00:33,133 be very clear about one thing. President Trump and his party and Judge Barrett will overturn 8 00:00:35,866 --> 00:00:39,366 the Affordable Care Act, and they won't stop there. 9 00:00:39,366 --> 00:00:44,200 JOHN YANG: Barrett, a Trump-nominated federal appeals court judge and former Notre Dame 10 00:00:44,200 --> 00:00:49,166 law professor, says her role model is the late Justice Antonin Scalia, a conservative 11 00:00:49,666 --> 00:00:51,733 icon. 12 00:00:51,733 --> 00:00:53,900 AMY CONEY BARRETT, Supreme Court Justice Nominee: I clerked for Justice Scalia more than 20 13 00:00:53,900 --> 00:00:58,266 years ago, but the lessons I learned still resonate. His judicial philosophy is mine 14 00:00:59,833 --> 00:01:03,900 too: A judge must apply the law as written. 15 00:01:03,900 --> 00:01:08,900 JOHN YANG: If confirmed, Barrett would succeed the late liberal icon Justice Ruth Bader Ginsburg, 16 00:01:10,833 --> 00:01:14,966 perhaps the greatest ideological shift since 1991, when Clarence Thomas replaced Thurgood 17 00:01:16,600 --> 00:01:19,433 Marshall. Liberals lamented the potential change. 18 00:01:19,433 --> 00:01:21,533 OLIVIA RIESEN, Opposed to Amy Coney Barrett's Nomination: As someone of color, as a female, 19 00:01:21,533 --> 00:01:26,533 I hope this doesn't get through, because I'd really like to see some real justice and someone 20 00:01:27,533 --> 00:01:29,466 to uphold RBG's legacy. 21 00:01:29,466 --> 00:01:33,666 JOHN YANG: Among her strong supporters are opponents of abortion rights. 22 00:01:33,666 --> 00:01:35,800 EMILY HARRISON, Supporter of Amy Coney Barrett's Nomination: It is definitely a change from 23 00:01:35,800 --> 00:01:40,700 having a liberal in the Supreme Court to having a more conservative Catholic who is able to 24 00:01:42,100 --> 00:01:44,533 speak out about our beliefs in the Supreme Court. 25 00:01:44,533 --> 00:01:48,933 JOHN YANG: When the Senate confirmed Barrett for the appeals court in 2017, she said the 26 00:01:48,933 --> 00:01:53,900 court's Roe v. Wade decision establishing abortion rights was settled precedent, even 27 00:01:55,100 --> 00:01:57,733 though she has said it was wrongly decided. 28 00:01:57,733 --> 00:02:02,333 On the appeals court, she has appeared sympathetic to state laws restricting access to abortion. 29 00:02:04,266 --> 00:02:07,600 If she joins the court by early November, one of the first cases Barrett would hear 30 00:02:07,600 --> 00:02:12,600 would be the latest challenge to the Affordable Care Act. As a law professor, Barrett wrote 31 00:02:14,566 --> 00:02:17,733 in a 2017 law review article that Chief Justice John Roberts' 5-4 opinion upholding the law 32 00:02:20,100 --> 00:02:23,566 pushed the act beyond its plausible meaning. 33 00:02:23,566 --> 00:02:27,933 Health care has been at the center of Democratic presidential nominee Joe Biden's opposition 34 00:02:27,933 --> 00:02:30,000 to Barrett. 35 00:02:30,000 --> 00:02:33,733 Democrats hope to steer clear of the kind of questions about Barrett's religious faith 36 00:02:33,733 --> 00:02:38,700 that came up in her appeals court confirmation hearing, and led some social conservatives 37 00:02:38,700 --> 00:02:40,766 to brand them as anti-Catholic. 38 00:02:40,766 --> 00:02:45,266 SEN. DIANNE FEINSTEIN (D-CA): When you read your speeches, the conclusion one draws is 39 00:02:48,233 --> 00:02:53,200 that the dogma lives loudly within you. And that's of concern. 40 00:02:57,166 --> 00:03:01,400 JOHN YANG: Judiciary Committee Chairman Lindsey Graham has set Supreme Court confirmation 41 00:03:01,400 --> 00:03:04,600 hearings to begin in just two weeks. 42 00:03:04,600 --> 00:03:09,600 So, who is Amy Coney Barrett and what does her record tell us about what she might be 43 00:03:10,333 --> 00:03:12,366 like on the high court? 44 00:03:12,366 --> 00:03:16,633 John Adams was a clerk for Judge Barrett on the federal appeals court in 2017 to 2018. 45 00:03:18,500 --> 00:03:21,833 He's now in private practice in Chicago in Madison, Wisconsin. And Victoria Nourse is 46 00:03:23,800 --> 00:03:27,200 a Georgetown law professor. She was chief counsel to Joe Biden when he was vice president. 47 00:03:27,933 --> 00:03:28,866 Welcome to you both. 48 00:03:28,866 --> 00:03:30,900 John, let me start with you. 49 00:03:30,900 --> 00:03:33,966 Over the next couple of weeks, we're going to be hearing a lot about Judge Barrett's 50 00:03:33,966 --> 00:03:38,966 judicial philosophy, hear her legal writings and academic writings dissected. 51 00:03:40,900 --> 00:03:43,933 But you can tell us something that isn't going to come through that. What is she like as 52 00:03:43,933 --> 00:03:48,233 a person? What was she like as a boss when you clerked for her? 53 00:03:48,233 --> 00:03:50,866 JOHN ADAMS, Former Law Clerk For Judge Amy Coney Barrett: Professor Barrett, when I first 54 00:03:50,866 --> 00:03:53,600 met her, and then Judge Barrett, was an amazing boss. 55 00:03:53,600 --> 00:03:58,566 It has been downhill ever since I'm not able to spend time with her on a day-to-day basis. 56 00:04:00,000 --> 00:04:03,666 She is unfailingly kind. She is courageous. And she is fair. 57 00:04:03,666 --> 00:04:08,666 And she is also someone with an unrivaled sense of humanity, humility, and humor, given 58 00:04:10,366 --> 00:04:14,766 all the tremendous responsibilities and accomplishments she possesses. 59 00:04:14,766 --> 00:04:19,766 She is a principled jurist, who will also put the rule of law before any personal preference 60 00:04:20,900 --> 00:04:22,933 or public pressure that she may receive. 61 00:04:22,933 --> 00:04:27,200 JOHN YANG: On Saturday night, when she said that Justice Scalia's judicial philosophy 62 00:04:29,166 --> 00:04:33,733 is her judicial philosophy, explain that. And how does it show itself when she approaches 63 00:04:34,700 --> 00:04:36,733 a case? 64 00:04:36,733 --> 00:04:40,333 JOHN ADAMS: Well, in two facets, she has explained the impact that Justice Scalia has had on 65 00:04:40,333 --> 00:04:42,366 her. 66 00:04:42,366 --> 00:04:46,200 She has professed she is an originalist. And originalists believe that the meaning of the 67 00:04:46,200 --> 00:04:51,200 law is fixed at the time it is ratified, and the meaning of the law, the original meaning, 68 00:04:53,133 --> 00:04:56,266 the ordinary meaning of the law, is what controls, if it's discernible. 69 00:04:56,266 --> 00:05:01,266 And she's also a textualist. She believes that she's confined by the words of the statute 70 00:05:01,266 --> 00:05:03,333 that's duly enacted by our legislature. 71 00:05:03,333 --> 00:05:08,166 JOHN YANG: Professor Nourse, you have said that you have -- you have challenged or questioned 72 00:05:10,000 --> 00:05:14,333 the idea of textual interpretation in a justice on the Supreme Court. 73 00:05:15,766 --> 00:05:18,366 What's your objections, or what's your problem with it? 74 00:05:18,366 --> 00:05:23,366 VICTORIA NOURSE, Georgetown Law: Well, it sounds really banal and obvious that you follow 75 00:05:23,966 --> 00:05:26,000 the rule of law. 76 00:05:26,000 --> 00:05:29,666 But it is kind of, as Justice Scalia would say, a wolf in sheep's clothing. Justice Scalia 77 00:05:31,600 --> 00:05:35,233 read a book call "Reading Law." And I wrote a book called "Misreading Law," because what 78 00:05:36,633 --> 00:05:38,866 happens is not these fine statements that John has said. 79 00:05:38,866 --> 00:05:42,900 And Judge Barrett -- I have known her and debated her as a law professor -- is a fine 80 00:05:42,900 --> 00:05:47,633 woman. But I have to tell you, the philosophy is not so fine and it's not so nice for the 81 00:05:47,633 --> 00:05:49,700 American people. 82 00:05:49,700 --> 00:05:52,966 And why? Look at the health care cases. You don't have to believe me. One of them went 83 00:05:52,966 --> 00:05:57,966 up there for what I have argued is a single word that was wrong in the statute. That is 84 00:06:00,000 --> 00:06:04,066 an anti-democratic way of looking at statutes. And she's got answers that you will hear at 85 00:06:04,066 --> 00:06:06,133 the hearing. 86 00:06:06,133 --> 00:06:09,033 But I fundamentally believe, if you look at what Justice Scalia has done -- and she has 87 00:06:09,033 --> 00:06:14,033 adopted his views on reading law -- you will see that he reads selectively. 88 00:06:15,966 --> 00:06:18,066 JOHN YANG: John, I want to ask you, I mean, obviously, to respond to what Professor Nourse 89 00:06:18,066 --> 00:06:23,066 has said, but also get your take on how you think, if Judge Barrett is confirmed, how 90 00:06:26,666 --> 00:06:31,666 Justice Barrett would change the court, change the direction of the court, taking this big 91 00:06:33,566 --> 00:06:37,466 ideological shift from Justice Ginsburg to potential Justice Barrett. 92 00:06:39,400 --> 00:06:41,966 JOHN ADAMS: Well, John, let me begin by responding to Professor Nourse. 93 00:06:41,966 --> 00:06:46,966 Textualism, as Justice Kagan has famously said, we are all textualists now. Textualism 94 00:06:49,033 --> 00:06:52,433 allows judges to follow the words of the statute duly enacted by the legislature, instead of 95 00:06:54,400 --> 00:06:58,333 searching for unknown purposes that could have been behind the legislature's minds or 96 00:06:59,766 --> 00:07:02,300 intents. 97 00:07:02,300 --> 00:07:05,766 And, in my view, textualism supports consistency and predictability in the law. It also prevents 98 00:07:08,500 --> 00:07:13,500 judges from being legislatures from the bench. And it also prevents judges from imposing 99 00:07:15,466 --> 00:07:19,166 their own views or their own public policy preferences into the law, because they're 100 00:07:19,166 --> 00:07:23,100 constrained by the words of the statute. They can't go beyond. 101 00:07:23,100 --> 00:07:27,433 And Professor Nourse does bring up the point that there are times when a statute can be 102 00:07:27,433 --> 00:07:32,433 ambiguous. But, of course, there are canons of construction that can guide a judge to 103 00:07:34,466 --> 00:07:37,500 identifying the ordinary meaning of the statute, and then neutrally applying the statute to 104 00:07:38,566 --> 00:07:40,633 the facts at hand. 105 00:07:40,633 --> 00:07:44,233 I think what you would see of a Justice Barrett is the same thing that you would see -- that 106 00:07:44,233 --> 00:07:49,233 we have seen of a Judge Barrett on the Court of Appeals in what she has participated in, 107 00:07:49,966 --> 00:07:51,900 over 600 decisions. 108 00:07:51,900 --> 00:07:56,333 She approaches every case with an open mind and a foundational commitment that either 109 00:07:56,333 --> 00:08:00,766 side might be right, and it's the law and the facts that guide the decision. 110 00:08:00,766 --> 00:08:05,733 JOHN YANG: Professor Nourse, let me ask you the same question about, where do you think 111 00:08:07,600 --> 00:08:11,733 this shift on the court, this new justice, if she is confirmed, how would this change 112 00:08:12,866 --> 00:08:15,100 the direction and ideology of the court? 113 00:08:15,100 --> 00:08:20,100 VICTORIA NOURSE: Well, I have to say, I think that this is going to be the biggest shift 114 00:08:22,433 --> 00:08:25,333 since the early 1930s, before FDR attempted to pack the court, which I believe was unconstitutional, 115 00:08:26,533 --> 00:08:29,933 by the way. I don't support that. 116 00:08:29,933 --> 00:08:34,766 But it's tremendous, because you will have six votes. Justice Scalia's philosophy about 117 00:08:34,766 --> 00:08:39,766 reading text is not traditional. It's not Blackstonian. It doesn't go back to 1787. 118 00:08:41,800 --> 00:08:44,966 And it's been very hostile to laws, and that because it would have -- if she voted as Justice 119 00:08:46,900 --> 00:08:49,733 Scalia did in the first health care case, as she said, we would not have Obamacare. 120 00:08:49,733 --> 00:08:53,733 There was a second case. Again, Justice Scalia rewrote that one. 121 00:08:53,733 --> 00:08:58,733 So, what we are going to see is a continued hostility toward the Congress. And this court 122 00:09:01,266 --> 00:09:05,333 also loves the presidency. They're very interested in what Justice Scalia misquoted the Constitution, 123 00:09:07,500 --> 00:09:12,500 in my view, when he said, the president has - - quote -- "all executive power." 124 00:09:13,666 --> 00:09:15,566 That's not what the Constitution says. 125 00:09:15,566 --> 00:09:19,666 So, I think it's a momentous appointment. I -- unfortunately, I think it's going to 126 00:09:21,533 --> 00:09:24,766 be mired in a terrible politics. And I hope people will focus, as John and I have, on 127 00:09:26,700 --> 00:09:31,700 these theories and what they really mean, not just the sayings. They all -- all lawyers 128 00:09:33,666 --> 00:09:36,133 are happy to give you great words about the rule of law and all of that. 129 00:09:36,133 --> 00:09:40,900 Look at what people have done with the philosophy, not what they say about it. 130 00:09:40,900 --> 00:09:45,900 JOHN YANG: Because you -- you talk about this momentous, this big moment, short time before 131 00:09:47,400 --> 00:09:51,000 the election, a fundamental shift in the balance of the court. 132 00:09:51,000 --> 00:09:55,333 You worked for Joe Biden, not only in the White House, but on the Hill, when he was 133 00:09:55,333 --> 00:09:57,400 on the Judiciary Committee. 134 00:09:57,400 --> 00:10:02,100 What -- we're going to hear a lot in these hearings. What is fair? What's a fair line 135 00:10:03,533 --> 00:10:05,933 of inquiry and what do you think is out of bounds. 136 00:10:05,933 --> 00:10:08,500 VICTORIA NOURSE: I certainly think her children are out of bounds. I think her religious views 137 00:10:08,500 --> 00:10:10,500 are out of bounds. 138 00:10:10,500 --> 00:10:14,933 When I -- I was actually nominated to her court, the Seventh Circuit. I never got a 139 00:10:16,066 --> 00:10:18,166 hearing. But my kids were threatened. 140 00:10:18,166 --> 00:10:21,700 I think people have to be very careful now. People are so worked up because of the pandemic. 141 00:10:21,700 --> 00:10:25,400 And there's just way too much enmity in this. 142 00:10:25,400 --> 00:10:30,400 And Biden was one who taught me that I can really enjoy Amy Barrett's, Judge Barrett's 143 00:10:32,466 --> 00:10:36,933 company, and we can have a great debate, but I can say, I think her views are dangerous. 144 00:10:36,933 --> 00:10:41,900 And so I hope that we work hard to focus on the views, stay away from the kids. 145 00:10:46,600 --> 00:10:48,633 JOHN YANG: John, you know the judge. 146 00:10:48,633 --> 00:10:53,600 She has been placed in this situation not of her own making, the environment in which 147 00:10:55,600 --> 00:10:58,633 her nomination is going to be considered. How do you think she's going to be able to 148 00:10:58,633 --> 00:11:00,733 handle it? 149 00:11:00,733 --> 00:11:03,266 JOHN ADAMS: John, I think she's going to be able to handle it very well. 150 00:11:03,266 --> 00:11:08,266 I know Judge Barrett. She is someone with amazing fortitude and poise and principle. 151 00:11:10,300 --> 00:11:14,100 And she will carry those same attributes as she goes through this very difficult process. 152 00:11:16,000 --> 00:11:18,066 Professor Nourse, I appreciate you saying what's out of bounds. I agree with you. 153 00:11:18,066 --> 00:11:22,100 But I respectfully disagree with you that her views are dangerous. She is someone who 154 00:11:22,100 --> 00:11:27,066 neutrally applies the law. And you can see that her neutral principles have been respected 155 00:11:27,066 --> 00:11:32,066 by the unanimous, bipartisan support that she received as a law professor from the Notre 156 00:11:33,233 --> 00:11:36,100 Dame law faculty, as well as her co-clerks. 157 00:11:36,100 --> 00:11:40,033 When she clerked on the United States Supreme Court for Justice Scalia, every single one 158 00:11:40,033 --> 00:11:45,033 of her co-clerks for all the justices supported her during her confirmation to the Seventh 159 00:11:47,066 --> 00:11:49,700 Circuit. And it's that type of neutral application of law that will make her a great justice. 160 00:11:49,700 --> 00:11:52,400 JOHN YANG: John Adams, Victoria Nourse, we're going to have to leave it there. But I think 161 00:11:52,400 --> 00:11:55,600 we have gotten a sense of what we're likely to be going through for the next couple of 162 00:11:55,600 --> 00:11:56,600 weeks. 163 00:11:56,600 --> 00:11:57,600 Thank you very much. 164 00:11:57,600 --> 00:11:58,600 VICTORIA NOURSE: Thank you. 165 00:11:58,600 --> 00:11:58,733 JOHN ADAMS: Thank you very much.