WEBVTT 00:02.533 --> 00:05.100 align:left position:10% line:71% size:80% JUDY WOODRUFF: It is one of the most important choices a president makes. And, in this critical 00:05.100 --> 00:10.100 align:left position:20% line:77% size:70% moment, the stakes are high for the future of the U.S. Supreme Court. 00:12.500 --> 00:15.200 align:left position:10% line:71% size:80% John Yang examines President Trump's nomination and how it comes with the election as a backdrop. 00:17.633 --> 00:21.366 align:left position:10% line:71% size:80% JOHN YANG: Democratic vice presidential nominee Kamala Harris led her party's criticism of 00:22.533 --> 00:25.100 align:left position:20% line:83% size:70% Supreme Court nominee Amy Coney Barrett today. 00:25.100 --> 00:28.133 align:left position:10% line:77% size:80% SEN. KAMALA HARRIS (D-CA), Vice Presidential Candidate: If nothing else, the voters should 00:28.133 --> 00:33.133 align:left position:10% line:77% size:80% be very clear about one thing. President Trump and his party and Judge Barrett will overturn 00:35.866 --> 00:39.366 align:left position:10% line:83% size:80% the Affordable Care Act, and they won't stop there. 00:39.366 --> 00:44.200 align:left position:20% line:71% size:70% JOHN YANG: Barrett, a Trump-nominated federal appeals court judge and former Notre Dame 00:44.200 --> 00:49.166 align:left position:10% line:77% size:80% law professor, says her role model is the late Justice Antonin Scalia, a conservative 00:49.666 --> 00:51.733 align:left position:40% line:89% size:50% icon. 00:51.733 --> 00:53.900 align:left position:10% line:77% size:80% AMY CONEY BARRETT, Supreme Court Justice Nominee: I clerked for Justice Scalia more than 20 00:53.900 --> 00:58.266 align:left position:10% line:77% size:80% years ago, but the lessons I learned still resonate. His judicial philosophy is mine 00:59.833 --> 01:03.900 align:left position:20% line:83% size:70% too: A judge must apply the law as written. 01:03.900 --> 01:08.900 align:left position:10% line:71% size:80% JOHN YANG: If confirmed, Barrett would succeed the late liberal icon Justice Ruth Bader Ginsburg, 01:10.833 --> 01:14.966 align:left position:10% line:77% size:80% perhaps the greatest ideological shift since 1991, when Clarence Thomas replaced Thurgood 01:16.600 --> 01:19.433 align:left position:10% line:83% size:80% Marshall. Liberals lamented the potential change. 01:19.433 --> 01:21.533 align:left position:10% line:77% size:80% OLIVIA RIESEN, Opposed to Amy Coney Barrett's Nomination: As someone of color, as a female, 01:21.533 --> 01:26.533 align:left position:10% line:77% size:80% I hope this doesn't get through, because I'd really like to see some real justice and someone 01:27.533 --> 01:29.466 align:left position:20% line:89% size:70% to uphold RBG's legacy. 01:29.466 --> 01:33.666 align:left position:10% line:77% size:80% JOHN YANG: Among her strong supporters are opponents of abortion rights. 01:33.666 --> 01:35.800 align:left position:10% line:77% size:80% EMILY HARRISON, Supporter of Amy Coney Barrett's Nomination: It is definitely a change from 01:35.800 --> 01:40.700 align:left position:20% line:71% size:70% having a liberal in the Supreme Court to having a more conservative Catholic who is able to 01:42.100 --> 01:44.533 align:left position:10% line:83% size:80% speak out about our beliefs in the Supreme Court. 01:44.533 --> 01:48.933 align:left position:20% line:71% size:70% JOHN YANG: When the Senate confirmed Barrett for the appeals court in 2017, she said the 01:48.933 --> 01:53.900 align:left position:10% line:77% size:80% court's Roe v. Wade decision establishing abortion rights was settled precedent, even 01:55.100 --> 01:57.733 align:left position:20% line:83% size:70% though she has said it was wrongly decided. 01:57.733 --> 02:02.333 align:left position:10% line:71% size:80% On the appeals court, she has appeared sympathetic to state laws restricting access to abortion. 02:04.266 --> 02:07.600 align:left position:10% line:77% size:80% If she joins the court by early November, one of the first cases Barrett would hear 02:07.600 --> 02:12.600 align:left position:10% line:77% size:80% would be the latest challenge to the Affordable Care Act. As a law professor, Barrett wrote 02:14.566 --> 02:17.733 align:left position:10% line:77% size:80% in a 2017 law review article that Chief Justice John Roberts' 5-4 opinion upholding the law 02:20.100 --> 02:23.566 align:left position:20% line:83% size:70% pushed the act beyond its plausible meaning. 02:23.566 --> 02:27.933 align:left position:20% line:71% size:70% Health care has been at the center of Democratic presidential nominee Joe Biden's opposition 02:27.933 --> 02:30.000 align:left position:30% line:89% size:60% to Barrett. 02:30.000 --> 02:33.733 align:left position:10% line:77% size:80% Democrats hope to steer clear of the kind of questions about Barrett's religious faith 02:33.733 --> 02:38.700 align:left position:10% line:77% size:80% that came up in her appeals court confirmation hearing, and led some social conservatives 02:38.700 --> 02:40.766 align:left position:10% line:89% size:80% to brand them as anti-Catholic. 02:40.766 --> 02:45.266 align:left position:10% line:77% size:80% SEN. DIANNE FEINSTEIN (D-CA): When you read your speeches, the conclusion one draws is 02:48.233 --> 02:53.200 align:left position:20% line:77% size:70% that the dogma lives loudly within you. And that's of concern. 02:57.166 --> 03:01.400 align:left position:10% line:77% size:80% JOHN YANG: Judiciary Committee Chairman Lindsey Graham has set Supreme Court confirmation 03:01.400 --> 03:04.600 align:left position:20% line:83% size:70% hearings to begin in just two weeks. 03:04.600 --> 03:09.600 align:left position:10% line:77% size:80% So, who is Amy Coney Barrett and what does her record tell us about what she might be 03:10.333 --> 03:12.366 align:left position:20% line:89% size:70% like on the high court? 03:12.366 --> 03:16.633 align:left position:10% line:77% size:80% John Adams was a clerk for Judge Barrett on the federal appeals court in 2017 to 2018. 03:18.500 --> 03:21.833 align:left position:10% line:77% size:80% He's now in private practice in Chicago in Madison, Wisconsin. And Victoria Nourse is 03:23.800 --> 03:27.200 align:left position:10% line:77% size:80% a Georgetown law professor. She was chief counsel to Joe Biden when he was vice president. 03:27.933 --> 03:28.866 align:left position:20% line:89% size:70% Welcome to you both. 03:28.866 --> 03:30.900 align:left position:10% line:89% size:80% John, let me start with you. 03:30.900 --> 03:33.966 align:left position:10% line:77% size:80% Over the next couple of weeks, we're going to be hearing a lot about Judge Barrett's 03:33.966 --> 03:38.966 align:left position:10% line:77% size:80% judicial philosophy, hear her legal writings and academic writings dissected. 03:40.900 --> 03:43.933 align:left position:10% line:77% size:80% But you can tell us something that isn't going to come through that. What is she like as 03:43.933 --> 03:48.233 align:left position:10% line:83% size:80% a person? What was she like as a boss when you clerked for her? 03:48.233 --> 03:50.866 align:left position:10% line:77% size:80% JOHN ADAMS, Former Law Clerk For Judge Amy Coney Barrett: Professor Barrett, when I first 03:50.866 --> 03:53.600 align:left position:10% line:83% size:80% met her, and then Judge Barrett, was an amazing boss. 03:53.600 --> 03:58.566 align:left position:10% line:77% size:80% It has been downhill ever since I'm not able to spend time with her on a day-to-day basis. 04:00.000 --> 04:03.666 align:left position:10% line:83% size:80% She is unfailingly kind. She is courageous. And she is fair. 04:03.666 --> 04:08.666 align:left position:10% line:77% size:80% And she is also someone with an unrivaled sense of humanity, humility, and humor, given 04:10.366 --> 04:14.766 align:left position:10% line:77% size:80% all the tremendous responsibilities and accomplishments she possesses. 04:14.766 --> 04:19.766 align:left position:10% line:77% size:80% She is a principled jurist, who will also put the rule of law before any personal preference 04:20.900 --> 04:22.933 align:left position:20% line:83% size:70% or public pressure that she may receive. 04:22.933 --> 04:27.200 align:left position:10% line:77% size:80% JOHN YANG: On Saturday night, when she said that Justice Scalia's judicial philosophy 04:29.166 --> 04:33.733 align:left position:10% line:77% size:80% is her judicial philosophy, explain that. And how does it show itself when she approaches 04:34.700 --> 04:36.733 align:left position:40% line:89% size:50% a case? 04:36.733 --> 04:40.333 align:left position:10% line:77% size:80% JOHN ADAMS: Well, in two facets, she has explained the impact that Justice Scalia has had on 04:40.333 --> 04:42.366 align:left position:40% line:89% size:50% her. 04:42.366 --> 04:46.200 align:left position:10% line:77% size:80% She has professed she is an originalist. And originalists believe that the meaning of the 04:46.200 --> 04:51.200 align:left position:10% line:77% size:80% law is fixed at the time it is ratified, and the meaning of the law, the original meaning, 04:53.133 --> 04:56.266 align:left position:10% line:77% size:80% the ordinary meaning of the law, is what controls, if it's discernible. 04:56.266 --> 05:01.266 align:left position:10% line:77% size:80% And she's also a textualist. She believes that she's confined by the words of the statute 05:01.266 --> 05:03.333 align:left position:20% line:83% size:70% that's duly enacted by our legislature. 05:03.333 --> 05:08.166 align:left position:10% line:77% size:80% JOHN YANG: Professor Nourse, you have said that you have -- you have challenged or questioned 05:10.000 --> 05:14.333 align:left position:10% line:77% size:80% the idea of textual interpretation in a justice on the Supreme Court. 05:15.766 --> 05:18.366 align:left position:10% line:83% size:80% What's your objections, or what's your problem with it? 05:18.366 --> 05:23.366 align:left position:10% line:77% size:80% VICTORIA NOURSE, Georgetown Law: Well, it sounds really banal and obvious that you follow 05:23.966 --> 05:26.000 align:left position:30% line:89% size:60% the rule of law. 05:26.000 --> 05:29.666 align:left position:10% line:77% size:80% But it is kind of, as Justice Scalia would say, a wolf in sheep's clothing. Justice Scalia 05:31.600 --> 05:35.233 align:left position:10% line:77% size:80% read a book call "Reading Law." And I wrote a book called "Misreading Law," because what 05:36.633 --> 05:38.866 align:left position:10% line:83% size:80% happens is not these fine statements that John has said. 05:38.866 --> 05:42.900 align:left position:10% line:77% size:80% And Judge Barrett -- I have known her and debated her as a law professor -- is a fine 05:42.900 --> 05:47.633 align:left position:10% line:77% size:80% woman. But I have to tell you, the philosophy is not so fine and it's not so nice for the 05:47.633 --> 05:49.700 align:left position:30% line:89% size:60% American people. 05:49.700 --> 05:52.966 align:left position:10% line:77% size:80% And why? Look at the health care cases. You don't have to believe me. One of them went 05:52.966 --> 05:57.966 align:left position:10% line:77% size:80% up there for what I have argued is a single word that was wrong in the statute. That is 06:00.000 --> 06:04.066 align:left position:20% line:71% size:70% an anti-democratic way of looking at statutes. And she's got answers that you will hear at 06:04.066 --> 06:06.133 align:left position:30% line:89% size:60% the hearing. 06:06.133 --> 06:09.033 align:left position:10% line:77% size:80% But I fundamentally believe, if you look at what Justice Scalia has done -- and she has 06:09.033 --> 06:14.033 align:left position:10% line:77% size:80% adopted his views on reading law -- you will see that he reads selectively. 06:15.966 --> 06:18.066 align:left position:10% line:77% size:80% JOHN YANG: John, I want to ask you, I mean, obviously, to respond to what Professor Nourse 06:18.066 --> 06:23.066 align:left position:10% line:77% size:80% has said, but also get your take on how you think, if Judge Barrett is confirmed, how 06:26.666 --> 06:31.666 align:left position:10% line:77% size:80% Justice Barrett would change the court, change the direction of the court, taking this big 06:33.566 --> 06:37.466 align:left position:10% line:77% size:80% ideological shift from Justice Ginsburg to potential Justice Barrett. 06:39.400 --> 06:41.966 align:left position:10% line:77% size:80% JOHN ADAMS: Well, John, let me begin by responding to Professor Nourse. 06:41.966 --> 06:46.966 align:left position:10% line:77% size:80% Textualism, as Justice Kagan has famously said, we are all textualists now. Textualism 06:49.033 --> 06:52.433 align:left position:20% line:71% size:70% allows judges to follow the words of the statute duly enacted by the legislature, instead of 06:54.400 --> 06:58.333 align:left position:10% line:77% size:80% searching for unknown purposes that could have been behind the legislature's minds or 06:59.766 --> 07:02.300 align:left position:40% line:89% size:50% intents. 07:02.300 --> 07:05.766 align:left position:10% line:71% size:80% And, in my view, textualism supports consistency and predictability in the law. It also prevents 07:08.500 --> 07:13.500 align:left position:10% line:77% size:80% judges from being legislatures from the bench. And it also prevents judges from imposing 07:15.466 --> 07:19.166 align:left position:10% line:77% size:80% their own views or their own public policy preferences into the law, because they're 07:19.166 --> 07:23.100 align:left position:10% line:83% size:80% constrained by the words of the statute. They can't go beyond. 07:23.100 --> 07:27.433 align:left position:10% line:77% size:80% And Professor Nourse does bring up the point that there are times when a statute can be 07:27.433 --> 07:32.433 align:left position:10% line:77% size:80% ambiguous. But, of course, there are canons of construction that can guide a judge to 07:34.466 --> 07:37.500 align:left position:20% line:71% size:70% identifying the ordinary meaning of the statute, and then neutrally applying the statute to 07:38.566 --> 07:40.633 align:left position:20% line:89% size:70% the facts at hand. 07:40.633 --> 07:44.233 align:left position:10% line:77% size:80% I think what you would see of a Justice Barrett is the same thing that you would see -- that 07:44.233 --> 07:49.233 align:left position:10% line:77% size:80% we have seen of a Judge Barrett on the Court of Appeals in what she has participated in, 07:49.966 --> 07:51.900 align:left position:20% line:89% size:70% over 600 decisions. 07:51.900 --> 07:56.333 align:left position:10% line:77% size:80% She approaches every case with an open mind and a foundational commitment that either 07:56.333 --> 08:00.766 align:left position:10% line:77% size:80% side might be right, and it's the law and the facts that guide the decision. 08:00.766 --> 08:05.733 align:left position:10% line:77% size:80% JOHN YANG: Professor Nourse, let me ask you the same question about, where do you think 08:07.600 --> 08:11.733 align:left position:10% line:77% size:80% this shift on the court, this new justice, if she is confirmed, how would this change 08:12.866 --> 08:15.100 align:left position:20% line:83% size:70% the direction and ideology of the court? 08:15.100 --> 08:20.100 align:left position:10% line:77% size:80% VICTORIA NOURSE: Well, I have to say, I think that this is going to be the biggest shift 08:22.433 --> 08:25.333 align:left position:10% line:71% size:80% since the early 1930s, before FDR attempted to pack the court, which I believe was unconstitutional, 08:26.533 --> 08:29.933 align:left position:20% line:83% size:70% by the way. I don't support that. 08:29.933 --> 08:34.766 align:left position:10% line:77% size:80% But it's tremendous, because you will have six votes. Justice Scalia's philosophy about 08:34.766 --> 08:39.766 align:left position:10% line:77% size:80% reading text is not traditional. It's not Blackstonian. It doesn't go back to 1787. 08:41.800 --> 08:44.966 align:left position:10% line:77% size:80% And it's been very hostile to laws, and that because it would have -- if she voted as Justice 08:46.900 --> 08:49.733 align:left position:10% line:77% size:80% Scalia did in the first health care case, as she said, we would not have Obamacare. 08:49.733 --> 08:53.733 align:left position:10% line:83% size:80% There was a second case. Again, Justice Scalia rewrote that one. 08:53.733 --> 08:58.733 align:left position:10% line:77% size:80% So, what we are going to see is a continued hostility toward the Congress. And this court 09:01.266 --> 09:05.333 align:left position:10% line:71% size:80% also loves the presidency. They're very interested in what Justice Scalia misquoted the Constitution, 09:07.500 --> 09:12.500 align:left position:10% line:77% size:80% in my view, when he said, the president has - - quote -- "all executive power." 09:13.666 --> 09:15.566 align:left position:20% line:83% size:70% That's not what the Constitution says. 09:15.566 --> 09:19.666 align:left position:10% line:77% size:80% So, I think it's a momentous appointment. I -- unfortunately, I think it's going to 09:21.533 --> 09:24.766 align:left position:10% line:77% size:80% be mired in a terrible politics. And I hope people will focus, as John and I have, on 09:26.700 --> 09:31.700 align:left position:10% line:77% size:80% these theories and what they really mean, not just the sayings. They all -- all lawyers 09:33.666 --> 09:36.133 align:left position:10% line:77% size:80% are happy to give you great words about the rule of law and all of that. 09:36.133 --> 09:40.900 align:left position:10% line:77% size:80% Look at what people have done with the philosophy, not what they say about it. 09:40.900 --> 09:45.900 align:left position:10% line:77% size:80% JOHN YANG: Because you -- you talk about this momentous, this big moment, short time before 09:47.400 --> 09:51.000 align:left position:20% line:77% size:70% the election, a fundamental shift in the balance of the court. 09:51.000 --> 09:55.333 align:left position:10% line:77% size:80% You worked for Joe Biden, not only in the White House, but on the Hill, when he was 09:55.333 --> 09:57.400 align:left position:10% line:89% size:80% on the Judiciary Committee. 09:57.400 --> 10:02.100 align:left position:10% line:77% size:80% What -- we're going to hear a lot in these hearings. What is fair? What's a fair line 10:03.533 --> 10:05.933 align:left position:10% line:83% size:80% of inquiry and what do you think is out of bounds. 10:05.933 --> 10:08.500 align:left position:10% line:71% size:80% VICTORIA NOURSE: I certainly think her children are out of bounds. I think her religious views 10:08.500 --> 10:10.500 align:left position:20% line:89% size:70% are out of bounds. 10:10.500 --> 10:14.933 align:left position:10% line:77% size:80% When I -- I was actually nominated to her court, the Seventh Circuit. I never got a 10:16.066 --> 10:18.166 align:left position:20% line:83% size:70% hearing. But my kids were threatened. 10:18.166 --> 10:21.700 align:left position:20% line:71% size:70% I think people have to be very careful now. People are so worked up because of the pandemic. 10:21.700 --> 10:25.400 align:left position:20% line:83% size:70% And there's just way too much enmity in this. 10:25.400 --> 10:30.400 align:left position:10% line:77% size:80% And Biden was one who taught me that I can really enjoy Amy Barrett's, Judge Barrett's 10:32.466 --> 10:36.933 align:left position:10% line:77% size:80% company, and we can have a great debate, but I can say, I think her views are dangerous. 10:36.933 --> 10:41.900 align:left position:10% line:77% size:80% And so I hope that we work hard to focus on the views, stay away from the kids. 10:46.600 --> 10:48.633 align:left position:20% line:83% size:70% JOHN YANG: John, you know the judge. 10:48.633 --> 10:53.600 align:left position:10% line:77% size:80% She has been placed in this situation not of her own making, the environment in which 10:55.600 --> 10:58.633 align:left position:10% line:77% size:80% her nomination is going to be considered. How do you think she's going to be able to 10:58.633 --> 11:00.733 align:left position:30% line:89% size:60% handle it? 11:00.733 --> 11:03.266 align:left position:10% line:77% size:80% JOHN ADAMS: John, I think she's going to be able to handle it very well. 11:03.266 --> 11:08.266 align:left position:10% line:77% size:80% I know Judge Barrett. She is someone with amazing fortitude and poise and principle. 11:10.300 --> 11:14.100 align:left position:10% line:77% size:80% And she will carry those same attributes as she goes through this very difficult process. 11:16.000 --> 11:18.066 align:left position:10% line:77% size:80% Professor Nourse, I appreciate you saying what's out of bounds. I agree with you. 11:18.066 --> 11:22.100 align:left position:10% line:77% size:80% But I respectfully disagree with you that her views are dangerous. She is someone who 11:22.100 --> 11:27.066 align:left position:10% line:77% size:80% neutrally applies the law. And you can see that her neutral principles have been respected 11:27.066 --> 11:32.066 align:left position:10% line:77% size:80% by the unanimous, bipartisan support that she received as a law professor from the Notre 11:33.233 --> 11:36.100 align:left position:20% line:83% size:70% Dame law faculty, as well as her co-clerks. 11:36.100 --> 11:40.033 align:left position:10% line:77% size:80% When she clerked on the United States Supreme Court for Justice Scalia, every single one 11:40.033 --> 11:45.033 align:left position:10% line:77% size:80% of her co-clerks for all the justices supported her during her confirmation to the Seventh 11:47.066 --> 11:49.700 align:left position:10% line:77% size:80% Circuit. And it's that type of neutral application of law that will make her a great justice. 11:49.700 --> 11:52.400 align:left position:10% line:77% size:80% JOHN YANG: John Adams, Victoria Nourse, we're going to have to leave it there. But I think 11:52.400 --> 11:55.600 align:left position:10% line:77% size:80% we have gotten a sense of what we're likely to be going through for the next couple of 11:55.600 --> 11:56.600 align:left position:40% line:89% size:50% weeks. 11:56.600 --> 11:57.600 align:left position:20% line:89% size:70% Thank you very much. 11:57.600 --> 11:58.600 align:left position:10% line:89% size:80% VICTORIA NOURSE: Thank you. 11:58.600 --> 11:58.733 align:left position:10% line:89% size:80% JOHN ADAMS: Thank you very much.